American Music Fairness Act
Another piece of legislation in Washington, D.C., is making its way through Congress that would pay artists and record labels for plays at terrestrial radio. If that sentence sounds familiar, that’s because the issue has long been present on Capitol Hill without managing to win a presidential signature.
In 1988, Frank Sinatra sent a letter to Paul McCartney, Stevie Wonder, Ella Fitzgerald, Bruce Springsteen and about 20 other music luminaries about a decades-old inconsistency in music copyright law. There’s no reason why the writer and publisher should be compensated for radio plays but not the performer, he argued. Sinatra foresaw an expeditious end to his activism. “We are optimistic that with a united effort, we will be able to achieve successful results within a reasonable period of time,” he wrote. But 36 years and numerous legislative attempts later, other artists are still working on the task.
The latest artist to pick up the baton is country icon Randy Travis, who appeared before a House Judiciary subcommittee hearing on Wednesday (June 26) in support of the latest legislation to address the issue, the American Music Fairness Act. Artists helped build radio in the U.S. and should be properly compensated, said Randy’s wife, Mary Travis (Randy has had difficulty speaking since suffering a stroke in 2013). Passing AMFA, she told lawmakers, “would make many old wrongs finally right.”
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The safest statement of the afternoon, though, went to Subcommittee chairman Rep. Darrell Issa, who admitted the hearing was “a repeat of some things we’ve seen in the past.” In recent memory, lawmakers have introduced the Performance Right Act in 2007 and 2009; the Free Market Royalty Act in 2013; Fair Play, Fair Pay in 2015 and 2017; the Ask Musicians for Music Act (AM-FM) in 2019; and now the AMFA in 2022 and 2023.
AMFA is like its predecessors in numerous ways: It provides accommodation for small broadcasters that reduce their royalty obligations. It protects the royalties paid to songwriters and music publishers for the performance of musical works on terrestrial radio. Most importantly, the bill codifies a performance right for sound recordings.
But is anything different about AMFA? “The language of the bill hasn’t changed since [the Performance Rights Act in 2009,” says Linda Bloss-Baum, associate director of American University’s business and entertainment program. “And I’d say kind of the appetite on both sides to have a meaningful negotiation hasn’t really changed either.”
The radio industry’s opposition to a new performance right certainly hasn’t changed. “A new performance royalty could spell the end for many local stations,” Curtis LeGeyt, president/CEO of the National Association of Broadcasters, said during Wednesday’s hearing. After surviving an advertising slowdown from the COVID-19 pandemic and facing the rise of streaming platforms, radio stations are arguably in worse financial shape than in years past. “Local broadcasters across this country are operating on extremely tight margins right now,” LeGeyt added.
The AMFA attempts to go easy on small broadcasters while holding regional and national conglomerates to a higher standard. Mike Huppe, president/CEO of SoundExchange, believes bill makes better accommodations for small broadcasters than its predecessors. Under the AMFA, stations that earn less than $1.5 million in annual revenue (and whose parent companies make less than $10 million in annual revenue) would pay $500 annually. Small, non-commercial stations with annual revenue of less than $100,000 would pay as little as $10 per year. “In that sense,” says Huppe, “this is the best bill for small broadcasters that there’s ever been.”
Unlike previous bills, the AMFA also includes language that says the Copyright Royalty Board, which would set royalty rates payable by stations, could take the promotional value of radio play, and the fact that stations currently pay sound recording royalties for streaming on their digital platforms, when setting rates. But that’s unnecessary, says David Oxenford, partner at Wilkinson Barker Knauer. “The section of the Copyright Act that deals with royalties that are payable to SoundExchange already has this part of the consideration” in determining how royalty rates are set, he says.
The main differences between the AMFA and its predecessors might not be found in the actual language of the bill. Market conditions have changed. At Wednesday’s hearing, lawmakers seemed more impatient and fed up than in years past.
In his closing remarks, Issa used his bully pulpit to warn broadcasters that Congressional intervention would be more painful than a negotiated deal with record labels. “I will tell you that at least this chair and the ranking member of the full committee, we stand ready to negotiate fairly small amounts to change a principle to get this behind us,” Issa said to LeGeyt. “And if you don’t take that, [then] quite frankly you have to live with the consequences.”
Issa’s tone suggests the climate in Washington, D.C., has changed. Huppe believes streaming and AI have made people more aware of the “inequities” facing creators. Issa is among the subcommittee members to have sponsored legislation to protect intellectual property from the threat of generative AI. Rep. Adam Schiff, another subcommittee member, was one of a trio of lawmakers to send a letter to the Registrar of the U.S. Copyright Office out of concern that Spotify’s decision to take a discounted mechanical royalty rate for its music-audiobook bundle was not in the spirit of the Music Modernization Act.
What’s more, radio could get a big boost from the AM Radio in Every Vehicle Act, which would mandate all automobiles manufactured in the U.S. to have AM radio. The bill would mandate technology that benefits radio broadcasters; FM stations, too, would presumably be included in in-dash stereos. Logically, at least, that could strengthen artists’ and labels’ argument.
“We’re not necessarily against the [AM Radio in Every Vehicle Act],” says Huppe, “but we would say, how can you possibly do that and not fix [the performance right] at the same time?”
The business of music has transformed in the last two decades, driven by technology that shattered barriers to entry and creators’ determination to control their destiny. At the 66th Grammy Awards earlier this year, more than half of the nominees were independent. And it’s more than just business: the indie movement has enabled diverse voices that could not be heard previously to occupy their rightful place in the industry. This makes music, and our society, more egalitarian and better.
Whether blues, punk, hip-hop or country, America’s most recognizable music genres started out in the indie sector, and today the association I lead has more than 750 members across 35 states, and most of them are small businesses with less than 50 employees. As the music industry has changed, so have they.
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Yet, some of the most important players in the music ecosystem cling to a bygone era that was dictated by the motto, “Might Makes Right.”
Exhibit A is iHeartRadio. The corporate behemoth controls 860-plus stations across the country that play over 50 million songs a year. Those songs helped iHeart’s multiplatform group — covering broadcast radio and national sales — generate more than $2.4 billion in 2023 alone, according to its latest earnings report.
But iHeart is stuck in 1990. It doesn’t bother discovering new artists. Instead, it overplays the hits and milks classic songs that were released decades ago. Despite the growing movement to achieve economic justice, iHeart denies artists and labels payment for their work.
Take a moment to reflect on that. iHeart makes $12 billion a year playing music but refuses to pay the hard working and talented people who perform and produce the songs that are the reason consumers tune-in in the first place. In its desperate attempt to cling to the past, iHeart and lobbyist group the National Association of Broadcasters (NAB) have spent nearly $100 million since 2020 lobbying Congress and spreading campaign contributions around to maintain the unfair status quo.
iHeart is powerful. But it’s on the wrong side of history. And it’s about to face what it hates most: a public forum where broadcasters must defend their craven practices. On Wednesday (June 26), the House Judiciary Committee will hold a hearing on the refusal of broadcasters to pay music creators for their work.
Richard James Burgess speaks onstage during the GRAMMY Influencer Activation at GRAMMY House during the 66th GRAMMY Awards on Feb. 1, 2024 in Los Angeles.
Jerod Harris/Getty Images for The Recording Academy
Of course, iHeartMedia CEO Bob Pittman won’t testify. He leaves the dirty work to the NAB. But that doesn’t matter. When the issue of compensation for AM/FM airplay is held in a public forum, broadcasters lose. That is why their lobbyists work so hard to prevent congressional hearings. But courageous members of Congress such as Reps. Darrell Issa (R-Calif.) and Jerry Nadler (D-NY) are making sure there is a public debate. And they have a solution to ending the injustice: the American Music Fairness Act, which would grant an AM/FM performance royalty. This bill would bring AM/FM radio into the 21st Century, and finally grant American recording artists the same rights enjoyed by their counterparts in almost every other country on the planet.
In the last two decades, how we discover and listen to music has dramatically changed, and not just the move from vinyl records to streaming. We can now ask a device in our house, such as Alexa, to play music, and it does. Spotify and SiriusXM are now buttons next to AM/FM on the dashboard of our cars. Polling from 2020 found that of the people who regard staying up to date on new music as important to them, only 11% turn to AM/FM radio to do so. Even in my generation, that number is only 27%. OK, Boomers!
We need to update the laws to catch up to these changes. It makes no sense if, when driving, music creators heard on SiriusX are being compensated, but not if you hear them on an AM/FM station. If you listen to radio programming through the iHeartMedia app on your phone, through a smart speaker, or even in your car, iHeart has to pay creators too. That’s why they have their hand out to Congress asking for a mandate to keep AM radios in cars.
The American Music Fairness Act brings justice and balance to the industry. Music creators get paid for their work. AM/FM stations have to pay just like the streaming services. And, because the legislation protects truly local radio stations, most stations in the country would pay just $10 to $500 a year to play music.
I know independent music creators, who I represent as president and CEO of the American Association of Independent Music, could definitely use the income from those royalties. My members love partnering with true locally controlled community radio stations, but the behemoths usually don’t take their calls. There are hundreds of thousands of artists and other creators who hustle and struggle to make a living by giving us the music we love.
This approach is fair, it’s equitable, and it’s just. And iHeart hates it.
Broadcasters try to create as much fear, uncertainty, and doubt to avoid doing what’s right. They claim a $500 annual fee to play music would decimate stations’ ability to broadcast emergency communications – then they hike the annual dues it charges its members. They cling to the asinine rationale that the alleged promotional value of radio play justifies their immoral scheme. Worse, broadcasters claim they shouldn’t have to pay for the songs they play while demanding Congress get more money for them when their content is used by YouTube and other platforms.
Broadcasters do all of this with a straight face. But time is running out. When the arc of justice comes around, iHeart and the National Association of Broadcasters will learn they are on the wrong side of history.
Dr. Richard James Burgess is an acclaimed musician, singer, songwriter, record producer, composer, author, manager, marketer and inventor, who presently serves as the president and CEO of the American Association of Independent Music (A2IM).
The American Music Fairness Act (AMFA), which would require AM/FM stations to pay performance royalties to music creators and copyright holders for radio airplay in the U.S., just cleared a key hurdle in Congress — though the bill is unlikely to pass before the new session of Congress convenes in January.
In a mark-up session on Wednesday (Dec. 7), the House Judiciary Committee (which deals with copyright matters) voted to advance the bill, clearing its way for a full vote on the House floor. To become law, the bill would need to be approved by the full House of Representatives as well as the Senate and then signed into law by President Biden. However, the proposed legislation is unlikely to pass in the current session of Congress, which is drawing to a close at the end of the month, unless it’s tacked onto a must-pass bill during the lame duck period.
In an opening statement prior to the vote, Judiciary Committee ranking member Jim Jordan (R-Ohio) noted that bipartisan negotiations over the AMFA in recent months “stalled and never reached a resolution,” though he expressed confidence the bill could make it through the next Congress.
“While today’s debate is an important start in this conversation, if the American music Fairness Act has not become law this Congress, negotiations must resume next year,” Jordan said. “We believe there’s a deal to be struck here that is fair to all sides most importantly, fair to taxpayers and consumers.”
The AMFA is just the latest attempt by members of Congress to compel radio stations to pay performance royalties, which is a common practice in other countries but has not historically been required in the U.S. In Nov. 2019, Sen. Marsha Blackburn (R-TN) and Rep. Jerrold Nadler (D-NY) introduced a similar bill, the Ask Musicians for Music Act, which would have allowed artists and copyright owners to negotiate performance royalty rates with radio stations in exchange for permission to play their music. That piece of legislation followed a previous bill, the Fair Play Fair Pay Act — also introduced by Blackburn and Nadler — that set out to achieve the same goal.
The AMFA was introduced in the House by Reps. Ted Deutch (D-FL) and Darrell Issa (R-CA) in June 2021, with the legislation announced during a press conference attended by singers Dionne Warwick and Sam Moore and Dropkick Murphys singer/bassist Ken Casey. A companion bill was introduced in the Senate by Sens. Alex Padilla (D-CA) and Marsha Blackburn (R-TN) this past September.
Unlike satellite/online radio and streaming services, AM/FM stations pay only songwriter royalties on the music they broadcast. To rectify that, the AMFA legislation would establish fair market value for radio performance royalties in the same way it has been for those other platforms.
The bill was a response to the Local Radio Freedom Act, a non-binding resolution introduced in May 2021 by Rep. Steve Womack (R-AR) and Rep. Kathy Castor (D-FL) that opposes the imposition of a performance royalty, which proponents argue would be financially devastating for broadcasters. A companion resolution was introduced in the Senate by Martin Heinrich (D-NM) and John Barrasso (R-WY). Both resolutions are backed by the National Association of Broadcasters (NAB), which has long been opposed to enforcing a performance royalty payout on terrestrial radio.
In a statement on Wednesday’s vote, Recording Academy CEO Harvey Mason jr. called it “an important step,” adding, “I am grateful to Chairman Nadler, Rep. Issa, and members of the committee for supporting the music community’s right to fair pay. It is vital to the health of our industry that creators are compensated for the use of their intellectual property on terrestrial radio, and the Recording Academy will continue to advocate for AMFA until this bill is signed into law.”
The Recording Academy is a key supporter of the AMFA along with organizations including the AFL-CIO, the American Association of Independent Music (A2IM), the American Federation of Musicians, the Recording Industry Association of America (RIAA), SAG-AFTRA, SoundExchange and the musicFIRST Coalition. Over the past several weeks, more than 100 artists including Warwick, Common, Harry Belafonte, Jack White, Becky G, Cyndi Lauper and Gloria Estefan have signed their names to a letter urging lawmakers to support the bill.
“To be clear, this fight is far from over,” said musicFIRST chairman and former Democratic congressman Joe Crowley in a statement. “We still have further to go before this important bill can be passed into law and improve the lives of artists across this country, and we know that Big Radio corporations will continue to oppose us every step of the way.”
In his own statement celebrating Wednesday’s vote, SoundExchange president and CEO Michael Huppe called on the full House to pass the bill. “Tens of thousands of music creators – our family, friends, and neighbors – are counting on Congress to do the right thing and help them get paid for their work. We cannot let them down,” he said.
On the other side of the issue, NAB CEO and president Curtis LeGeyt thanked the committee members who voted against advancing the AMFA, along with members of Congress who have supported the Local Radio Freedom Act resolution that stands in opposition to the bill.
“These lawmakers understand that AMFA will harm local broadcasters and audiences around the country, undermine our ability to serve their communities and ultimately fail artists by leading to less music airplay,” said LeGeyt. “Broadcasters urge the recording industry to join us in serious discussions instead of using the few legislative days left in the calendar to pursue divisive legislation that faces broad congressional opposition.”
Whenever I tell someone that recording artists aren’t paid when their songs are played on AM/FM radio, they are surprised. Yet, it’s true: not a single performer has ever been paid a performance royalty by American broadcasters for analog radio.
Unfortunately, that’s only half the story. When U.S. broadcasters, including iHeartMedia, Audacy, Cumulus Media, and others, refuse to pay for AM/FM radio plays, it is a double whammy. First, it denies thousands of hard-working Americans the full ability to make a living from their craft.
Second, this denial is used as an excuse by many countries around the world to withhold payments to U.S. artists when their music is played overseas. European countries typically pay royalties to foreign artists, but some use U.S. broadcasters’ refusal to pay for AM/FM radio plays as an excuse for denying those royalties to American artists. Given that American music is the most popular in the world, this amounts to hundreds of millions of dollars in lost income for American creators – every year.
Think that’s bad? It gets even worse. Some countries (such as France) do collect royalties on behalf of Americans, but that money never gets to the rightful recipients in the United States. Instead, they divert it towards their local artists or to fund local “cultural” programs. SoundExchange and others are currently in French courts trying to remedy this egregious practice.
Fortunately, some progress is being made. In 2020, the European Court of Justice (ECJ) ruled that all artists, regardless of nationality, should be paid when their music is played in Europe. They cite a principle called “National Treatment,” in which a country must treat foreigners with the same laws they treat their own citizens. It’s an important principle: imagine if the United States denied a foreign national the right to a fair trial simply because their home country doesn’t provide those protections.
In reaction to the ECJ decision, France and others are seeking to limit its impact so they can keep diverting royalties away from American artists for their own cultural funds. The Fair Trade of Music coalition is fighting to ensure that Europe does the right thing and treats artists equally, regardless of nationality.
This battle to protect American interests in Europe has been fought for a while, but the problem could be solved instantly if Congress passed the American Music Fairness Act, legislation to finally grant recording artists a performance right for AM/FM. The notion of paying artists for radio play already exists in the rest of the world and also exists in the U.S. for streaming services (such as Spotify or Sirius XM). The fact that the House Judiciary Committee is expected to consider the legislation on Wednesday is a sign that it’s gaining momentum as Congress completes its work. The legislation lays out a fair approach: it requires billion-dollar corporations to pay their fair share for music. It also protects small broadcasters and college radio stations that would have to pay (at most) only $500 a year (less than $2 per day). The smallest of broadcasters are capped at $10 a year.
Corporate broadcasters argue that a “mutually beneficial relationship” exists between AM/FM radio and music creators. Yet their actions belie that claim, as they spend millions to fight this legislation and avoid sharing the billions of dollars they make in advertising from music. In the past year, the NAB and iHeartMedia have spent over $11 million in lobbying alone. Broadcasters are even using their own federally-granted airwaves to run ads opposing the legislation while ignoring calls to give artists equal time to run their own ads. I guess it’s too dangerous for listeners to hear both sides of the story.
It’s important for Congress to act now. The House Judiciary Committee is considering the bill this week. With the passage of the American Music Fairness Act, artists would finally get paid for their music being played on AM/FM radio in the U.S., and it would remove the excuse for other countries to withhold their royalties from Americans. By recognizing the value of their work here at home, the United States can unlock hundreds of millions of overseas dollars for artists.
Most importantly, it’s simply the right thing to do.
Michael Huppe is president and CEO of SoundExchange.
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