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For artists who choose not to sign with a record label, some may be independent and others will be do-it-yourself independent.
What’s the difference? Take Laufey, the Icelandic jazz artist whose latest album, Bewitched, reached No. 23 on the Billboard 200 albums chart in September. Laufey is signed to AWAL, the Sony Music-owned company that provides marketing and distribution services for independent artists. She hasn’t signed away the rights to her music, but AWAL helps promote her recordings at digital service providers and retail.
Oliver Anthony Music, on the other hand, is DIY independent. By all appearances, the “Rich Men North of Richmond” singer, whose real name is Christopher Anthony Lunsford, has left his recordings on autopilot without any kind of marketing behind them since he broke into the national consciousness in August and topped the Hot 100 for two straight weeks. Following the success of “Rich Men,” Lunsford has released more songs without the usual promotional muscle required to get new music noticed. As he told Billboard earlier this week, he manages himself and is avoiding record labels as he prepares to record an album.
He’s clearly getting some help. Lunsford has a basic but professional website and an e-commerce store that sells a handful of variations on Oliver Anthony Music hats, T-shirts, bumper stickers and beer koozies. For concerts, Anthony signed with UTA for representation and has a year of touring ahead of him, starting in February with dates in Europe and the Eastern half of the United States. He has an informal publicist who helps with media requests. And he told Billboard he has encountered “many artists,” such as country star Jamey Johnson, who have lent support and guidance.
Comparing “Rich Men” to other tracks to reach No. 1 on the Hot 100 this year, though, suggests being DIY creates some missed opportunities. Combined sales and streams of Miley Cyrus’ “Flowers,” Taylor Swift’s “Anti-Hero,” Morgan Wallen’s “Last Night” and SZA’s “Kill Bill” dropped between 17% and 55% over the 10-week period after the last date those tracks were No. 1. “Rich Men,” in contrast, dropped 83.4%. It makes sense: A major label marketing machine is better than an independent artist’s system in helping a track get hot and maintain momentum over months and years.
With a little help, “Rich Men” could arguably have far more sales and streams. As a DIY artist, Lunsford uses social media activity to keep listeners engaged and depends on the continued interest of journalists to keep him in the public eye. As he told Billboard this week, becoming a full-time musician means “you’re essentially a business owner and an entrepreneur and a lot of other things, too. And those are things I’m not quite used to yet.”
But Lunsford has done extremely well taking the DIY route. Billboard estimates that “Rich Men” has grossed $2 million from recorded music and publishing royalties from U.S. sales and streams since its release in August. While his weekly download sales are down sharply from their peak in August, our estimates still put the track’s royalties at an impressive $60,000 per week. And because Oliver Anthony Music is a DIY independent artist who retains the rights to his master recording and publishing, he should be pocketing nearly all that money (less any fees for distribution and publishing administration).
Besides, Lunsford seems content being a DIY artist — even if that means leaving money and celebrity on the table. There’s something to be said about saying “no” to the usual impulses to staff up and scale a business as fast as possible. Lunsford can ease into stardom at a comfortable pace rather than jump headfirst into the music business’ shark-filled waters. Read through the YouTube comments to his videos and you sense that listeners put value in Lunsford not being an industry insider — it adds to his authenticity. At the end of the day, not being too much of a business is probably good for Lunsford’s business.
Surprisingly, “Rich Men” has held up better than a couple of other No. 1s in 2023: Jason Aldean’s “Try That in a Small Town” and Jimin’s “Like Crazy.” Track sales and streams for “Try That” dropped 91.1% in the 10 weeks after it was No. 1. For “Like Crazy,” the first No. 1 for a solo member of superstar K-pop group BTS, track sales and streams dropped 92.9% over the same period. Although “Rich Men” has fallen far from its peak, its 83.4% drop in track sales and streams is considerably better than those other two hits.
There are obvious parallels between “Try That” and “Rich Men.” Both reached No. 1 because of widespread media attention. Both started conversations about social issues: race for Aldean, class for Lunsford. Both were celebrated as conservative anthems, although Anthony has distanced himself from political partisanship. Both are country tracks — Aldean’s a mainstream song built for maximum radio play, Lunsford’s a more old-fashioned slice of Appalachian roots music.
What’s more, both “Try That” and “Rich Men” did brisk business in track sales. As Billboard noted when “Rich Men” ascended the chart, artists popular with conservatives often have strong download numbers. In a typical week, the No. 1 track on the Hot 100 might sell 15,000 downloads, but when the culture wars stoke demand, the No. 1 will sell ten times that many. “Try That” sold 175,000 downloads in the week it was No. 1, while “Rich Men” averaged 132,000 weekly downloads in its two weeks atop the Hot 100.
Download buyers don’t offer the same consistency as streamers, though, and both “Rich Men” and “Try That” lost 99% of their track sales in the 10 weeks after they topped the chart. And because download sales were a big reason why those tracks reached No. 1, their total consumption (measured in both download sales and streams) dropped more than No. 1s that relied more on streaming. But heavy download sales were instrumental in getting each track to No. 1, and “Rich Men” still sells well, too: Last week, the track was the No. 41 most purchased track in the United States., according to Luminate.
Lunsford could easily ditch the DIY approach and assemble a team, but he’s in the rare position of not necessarily needing one. “Rich Men” succeeded without help from a marketing expert, social media guru or even a manager. Instead, Lunsford benefitted from an unprecedented groundswell of interest that gifted him an immense online following. His 1.15 million YouTube followers give him a similar audience as more established country musicians Kenny Chesney and Zac Brown Band, and twice as many as Grammy winner Kacey Musgraves. He has about as many Spotify followers as Bailey Zimmerman, a rising country star signed to Warner Music Nashville and Elektra Records.
When Lunsford eventually releases a new album, he won’t need many resources to instantly reach millions of fans — and he prefers it that way. “I think the most special thing about it being on the chart at all,” he told Billboard, “is that it made it to the chart without some big, corporate schmucky schmuck somewhere pumping a bunch of money into making it get there.”
Last spring, executives at Onex, AEG’s private equity partner in facility management company ASM Global, notified AEG leadership of their plans to trigger a clause in their agreement that allowed Onex to sell its 35% stake in ASM. Under the terms of the deal, AEG could either buy out Onex or match competing offers.
AEG officials instead elected to get out too, and over about half a year worked with Onex to identify a buyer for all ASM Global. On Nov. 3, Onex and AEG jointly announced that Legends Hospitality was buying ASM, the country’s leading venue management company.
Onex CEO Bobby Le Blanc told investors on a Nov. 10 earnings call that the decision to sell its ASM ownership stake for $2.3 billion was prompted by the company’s rebound in value, quickly recovering in the post-pandemic period after seeing its value dramatically drop when concerts shut down from 2020-2021 due to COVID-19.
The final sale price would double what ASM Global was worth in 2019 when AEG and Onex merged their SMG facility management holdings to create the world’s largest facility manager, Le Blanc confirmed.
Still, AEG’s decision to sell surprised many in the touring industry who had followed the company’s growth in that space.
For one, the sale made AEG a much smaller company, reducing its global footprint from 350 facilities under management to just nine — all of which AEG either owns or partially owns. And unlike Onex, as the world’s second largest concert promoter, AEG was able to enjoy significant synergies from owning ASM that other companies could not. AEG could more easily book its touring shows at ASM-managed facilities, expand its AXS ticketing platform to ASM-managed venues and sell sponsorships through its global partnerships division.
AEG and Onex merged their facilities holdings 14 months after Onex acquired SMG, AEG’s longtime facilities rival. In so doing, ASM Global became the world’s largest venue management company, with little to no competition for potentially large lucrative government contracts. Facility management has long been a predictable contracts business, in which city and county governments would pay SMG or AEG a fee to manage publicly owned venues and split any profits the private companies helped generate.
Merging the industry’s two largest competitors into ASM Global gave Onex and AEG unprecedented scale in the capital-intensive space and access to lucrative contracts. But the honeymoon didn’t last long. Oak View Group, which was founded in 2015 by former AEG CEO Tim Leiweke — who made his own failed bid to buy SMG — began growing as a serious competitor, and peeled away a number of big-name management clients away including PPG Paints Arena in Pittsburgh, the BOK Center in Tulsa and the sprawling McCormick Place convention center in Chicago. While the concert business’ post-pandemic boom has brought impressive profits, a source in facility management says that increased competition and inflation have been eating up ASM’s margins. Additionally, rising interest rates have made it difficult for firms like ASM to offer up capital investments in return for long-term management contracts, and much of the business’ growth was coming from new international venue projects, which were more costly to service.
Most recently, the bulk of AEG’s growth has been in its tour promotion business globally and through its theaters and clubs division. Since the end of the pandemic, both AEG and Live Nation have been looking to expand their network of smaller venues that they manage exclusively.
The company’s sweet spot is “locations with capacities of 1,500 to 5,000,” Rick Mueller, president of AEG Present North America, told Billboard last month. While most arena management deals do not include exclusive booking agreements because no single promoter can provide arenas enough content on their own to sustain a large facility, exclusively programming a club or theater can be much more profitable due to the leverage the contract holder has over other promoters wanting to book the venue, requiring promoters to cut them in on show deals. Now, AEG likely has more than an extra billion dollars to invest in this strategy, should it choose to do so.
Last spring, executives at Onex, AEG’s private equity partner in facility management company ASM Global, notified AEG leadership of their plans to trigger a clause in their agreement that allowed Onex to sell its 35% stake in ASM. Under the terms of the deal, AEG could either buy out Onex or match competing offers.
AEG officials instead elected to get out too, and over about half a year worked with Onex to identify a buyer for all ASM Global. On Nov. 3, Onex and AEG jointly announced that Legends Hospitality was buying ASM, the country’s leading venue management company.
Onex CEO Bobby Le Blanc told investors on a Nov. 10 earnings call that the decision to sell its ASM ownership stake for $2.3 billion was prompted by the company’s rebound in value, quickly recovering in the post-pandemic period after seeing its value dramatically drop when concerts shut down from 2020-2021 due to COVID-19.
The final sale price would double what ASM Global was worth in 2019 when AEG and Onex merged their SMG facility management holdings to create the world’s largest facility manager, Le Blanc confirmed.
Still, AEG’s decision to sell surprised many in the touring industry who had followed the company’s growth in that space.
For one, the sale made AEG a much smaller company, reducing its global footprint from 350 facilities under management to just nine — all of which AEG either owns or partially owns. And unlike Onex, as the world’s second largest concert promoter, AEG was able to enjoy significant synergies from owning ASM that other companies could not. AEG could more easily book its touring shows at ASM-managed facilities, expand its AXS ticketing platform to ASM-managed venues and sell sponsorships through its global partnerships division.
AEG and Onex merged their facilities holdings 14 months after Onex acquired SMG, AEG’s longtime facilities rival. In so doing, ASM Global became the world’s largest venue management company, with little to no competition for potentially large lucrative government contracts. Facility management has long been a predictable contracts business, in which city and county governments would pay SMG or AEG a fee to manage publicly owned venues and split any profits the private companies helped generate.
Merging the industry’s two largest competitors into ASM Global gave Onex and AEG unprecedented scale in the capital-intensive space and access to lucrative contracts. But the honeymoon didn’t last long. Oak View Group, which was founded in 2015 by former AEG CEO Tim Leiweke — who made his own failed bid to buy SMG — began growing as a serious competitor, and peeled away a number of big-name management clients away including PPG Paints Arena in Pittsburgh, the BOK Center in Tulsa and the sprawling McCormick Place convention center in Chicago. While the concert business’ post-pandemic boom has brought impressive profits, a source in facility management says that increased competition and inflation have been eating up ASM’s margins. Additionally, rising interest rates have made it difficult for firms like ASM to offer up capital investments in return for long-term management contracts, and much of the business’ growth was coming from new international venue projects, which were more costly to service.
Most recently, the bulk of AEG’s growth has been in its tour promotion business globally and through its theaters and clubs division. Since the end of the pandemic, both AEG and Live Nation have been looking to expand their network of smaller venues that they manage exclusively.
The company’s sweet spot is “locations with capacities of 1,500 to 5,000,” Rick Mueller, president of AEG Present North America, told Billboard last month. While most arena management deals do not include exclusive booking agreements because no single promoter can provide arenas enough content on their own to sustain a large facility, exclusively programming a club or theater can be much more profitable due to the leverage the contract holder has over other promoters wanting to book the venue, requiring promoters to cut them in on show deals. Now, AEG likely has more than an extra billion dollars to invest in this strategy, should it choose to do so.
Just like the zombies, vampires and ghouls that inspired him, Bobby “Boris” Pickett rises from the dead every October to haunt the radio, streaming services, TV commercials and the hundreds of products named after his 1962 smash “Monster Mash.”
“Every single year my entire life, I get to hear my grandfather’s voice for a month,” says Pickett’s grandson, Jordan Huus, 34. “And he’s not crooning or loudly singing. I get to hear his speaking voice.”
Although more recent spooky hits challenge “Monster Mash” for dominance every October, Pickett’s weird Boris Karloff imitation remains an immortal Halloween anthem. During the past four Halloweens combined, the track received more than streamed 15.4 million on demand streams; during the same period, Michael Jackson‘s “Thriller” scored 16.7 million, Ray Parker Jr.‘s “Ghostbusters” 12.8 million and Andrew Gold‘s “Spooky, Scary Skeletons” 8.85 million, according to Luminate.
Billboard estimates “Monster Mash,” which was released in 1962, has generated nearly $350,000 in average annual revenue globally over the last three years from the master recording, not including whatever synch revenue it enjoys from commercial and film/TV use, nor licensing revenue from the various compilation albums the song has appeared on; and about $500,000 in annual global publishing revenue, including cover versions and synchronization. In all, combined revenue for the song could easily hit $1 million each year, Billboard estimates.
“We had a great year last year with ‘Monster Mash,’” says Rell Lafargue, president/CEO of Reservoir, which owns Pickett’s publishing share and scored a “nice, healthy six-figure synch” for a 2021 General Mills cereal commercial relaunching Franken Berry, Boo Berry and Count Chocula. “We probably have 15 to 20 licensing requests on the line as we speak. Every year, people gear up for Christmas and other holidays, but the ‘Monster Mash’ is always there.”
Since its release on the late producer Gary Paxton‘s independent label, Garpax, “Monster Mash” has navigated a complicated path through the music business. Its two songwriters are Pickett and a friend, Leonard Capizzi, who sang doo-wop together on the beach in Los Angeles before cooking up the novelty song. After Paxton failed to sell the single to a bigger label, he gave it to radio DJs, who turned it into a hit; afterward, London Records agreed to distribute, and Stuart Hersh, Pickett’s longtime manager, says the company retained ownership of the master — now controlled through major label Universal Music Group’s Decca U.K. subsidiary.
As for publishing, Capizzi, who died in 1988, retained his share, and, as Pickett said in a 1995 interview, “his widow and child are getting all of his royalties.” Paxton, the “Monster Mash” producer, took over Pickett’s publishing and made a deal with publisher Acoustic Music, which changed hands to several other companies before Reservoir acquired it in 2014. Huus doesn’t know all the specifics, but his mother, Pickett’s daughter Nancy Huus, received publishing royalties until her death in February 2023, leaving her widower to control the family share.
“My mother left those to my father, who will in turn leave those as a split to my sister and I,” Huus says.
After its original 1962 release, various indie labels reissued “Monster Mash,” including Parrot Records 11 years later, when the song returned to the Billboard Hot 100, peaking at No. 10. By the ’90s, according to Hersh, Pickett had participated in a K-Tel compilation remake that included backup Tennessee vocalists who pronounced the chorus “monster may-ash.” Pickett called this version “Monster Mish.”
Says Hersh: “Mish-mosh aside, I said to Bobby, ‘Why don’t I produce a new version for us that’ll be our master, and I’ll try to cut it as close to the first one as possible?’” Hersh brought in 1950s drums and created the track-opening creaky door with an actual creaky door, as opposed to the original effect, a nail slowly pulled out of a surface.
Convincing Pickett to use his higher-pitched voice from the 1962 version, Hersh re-released the track, Taylor Swift-style, and landed synch deals such as the 2005 John Cusack movie Must Love Dogs and a line of musical Hallmark greeting cards for Halloween. “I said to Bobby, ‘We’ve got to make this thing sound perfect and give it to independent films, and give people a chance, and it’ll be your master,’” Hersh recalls. After Pickett died in 2007, Nancy Huus gave the rights to the re-recorded 1993 master to Hersh, who still manages Pickett’s career, attending seasonal conventions and linking to streams and downloads of the reissue on themonstermash.com. “Our [version of the track] is the one with the black-and-white photo of Bobby over the gravestone,” Hersh says.
Hersh has no idea, however, who owns the name “Monster Mash” as it pertains to product titles. The U.S. Patent and Trademark Office lists 60 active and abandoned applications carrying that name, including General Mills (for its Monster Mash cereal), Friendly Ice Cream (Monster Mash sundaes) and a Hong Kong company called Longshore Ltd. (for board games). “It was never trademarked back then, and I really don’t know who did it this time,” Hersh says. “I would think it’s been used so many times, at this point, it’s just like a regular phrase.”
Jordan Huus was 8 when his late mother, who was adopted, met Pickett, her biological father, for the first time. Since then, Huus recalls a family fascination with Halloween that lives on in his own household. “Oh, man, if you have like an hour or two, I could point out each decoration,” Huus says, describing his mother’s hand-crafted Halloween wreaths, plus posters and records honoring Bobby “Boris” Pickett. “Of course, we have to bring out the ‘Monster Mash’ stuff.”
Ed Christman contributed to this story.
U.S. labels and musicians have long counted on welcoming international audiences to turn home-grown successes into global stars. Just as people around the world snap up tickets for Hollywood blockbuster movies, consumers abroad have been typically eager for English-language music from the world’s leading entertainment exporter.
In recent years, however, U.S. pop stars have increasingly heavy competition from artists most Americans will never know. In France, the top song of 2022 was “Tout va bien” by Alonzo featuring Nino and Naps, according to French recorded music trade group SNEP. Only one foreign song, “As It Was” by Harry Styles, cracked France’s top 10. The top of the chart’s composition looked drastically different from previous years. In 2017, when Ed Sheeran’s “Shape of You” reigned supreme with French music fans, five of the country’s top 10 songs came from foreign artists. In 2012, eight of France’s top 10 songs were from foreign artists.
To Will Page, author and former chief economist at Spotify, the changing fortunes of French artists is evidence streaming and online platforms have changed the balance of power. “When the cost structure changes, local [music] bounces back,” he says. The CD era involved higher costs — mainly manufacturing and marketing — that favored international artists. Despite France’s rule that a quarter of the songs played on radio must be French, the system still tilted toward foreign artists with greater financial backing.
But with streaming and digital distribution, those costs are all but eliminated. Local artists are free to create and distribute music in far greater numbers, satiating a demand that had been unfulfilled. Consumers who previously listened to American pop stars are all too happy to stream artists singing and rapping in their native tongue. “An unregulated free market has achieved what regulation failed to do,” says Page.
In a paper titled Glocalization of Music Streaming Within and Across Europe, Page and Chris Dalla Riva, a musician who works at music tech startup Audiomack, showed France is hardly alone in this trend toward “glocalization” — local entertainment succeeding in an increasingly globalized digital economy. In other large European markets such as Italy, Poland and Sweden, consumers are also gravitating toward local artists who create music in local languages. These countries — along with Spain, the Netherlands, Germany and the U.K. — matched or reached their peak domestic share of top 10 songs in 2022. In 2012, less than a fifth of the top 10 songs in Poland, France, Netherlands and Germany were local artists. In 2022, local music’s share of the top 10 songs reached 70% in Poland, Italy and Sweden, 60% in France, 30% in the Netherlands and Spain, and 20% in Germany.
Similar results are echoed on TikTok, which has transformed how people discover music around the world. In France, Italy, Poland and Greece, 80% of TikTok’s top 10 songs of 2022 were by home grown acts. Local artists accounted for 60% of the top 10 in Spain and 50% in the U.K. Local hip-hop is especially popular on TikTok in these markets, says Paul Hourican, the platform’s global head of music operations. Drake and Eminem may have a universal appeal but don’t connect with audiences the way local musicians can. “When you think about what hip-hop is, it’s amazing beats and truth telling, and speaking their truth in local language,” says Hourican. “That seems to be really, really connecting, and kind of forwarding the culture of hip-hop into into all these markets.”
The localization shift doesn’t surprise Sylvain Delange, managing director, Asia Pacific at French music company Believe. “We knew that the market would grow domestically, and that the local music would take a bigger share of the music consumption,” he says.
“When streaming came in, there was a very natural effect that skewed consumption towards international music for the simple reason that when streaming music comes, it serves, first and foremost, the higher income, large, tier one cities that are more open to international influence,” says Delange. “So, it’s very logical that in the beginning, international music would over index on streaming platforms. But then it would progressively switch back towards a fairly natural trend — which is domestic music.”
Early on, streaming services’ curation was much more focused on English-language music, adds Dominique Casimir, chief content officer at BMG. “You couldn’t put an Italian song in the middle of that playlist, that just certainly makes no sense.” But as streaming exploded in popularity, the services hired more staff to service the local music market and put a greater emphasis on local music. With boots on the ground, streaming services created channels and playlists that focused on local repertoire, she says. “That did change massively the work we can do together with DSPs.”
Supply alone doesn’t explain the trend toward globalization, though. An additional explanation, “is generally people’s need to identify with their culture,” says Golnar Khosrowshahi, CEO of Reservoir Media. “That is driving listenership and the importance of that identification, whether it’s around the subject matter or the sound or the person. This is not new news. People identify with their culture. Their culture is important to them. Maintaining that culture is important.”
To take advantage of the forces shaping globalization, Khosrowshahi has targeted investments throughout Latin America and the Middle East. Among Reservoir Media’s recent acquisitions are the catalogs of Latin songwriter and producer Rudy Perez and, in conjunction with PopArabia, the catalogs of Egyptian company RE Media and Egyptian rap duo El Sawareekh. Additionally, in June, Reservoir Media and PopArabia formed a joint venture with Saudi Arabian hip-hop label Mashrex and acquired some of its back catalog.
“One of the reasons we’re compelled by the Middle East market and the Arabic-speaking market is because of the size of that diaspora,” says Khosrowshahi. “The geographical reach of that diaspora goes to Malaysia and Indonesia. You have substantive Arabic speaking populations, granted different dialects, but music seems to be able to transcend them a little bit.”
Through both catalog acquisitions and frontline label partnerships, companies are finding opportunities in an increasingly online global music market. Investments are now commonplace in developing markets that were previously overlooked by music companies. Believe acquired Indian music company Venus Music, partnered with Indian imprints Think Music and Panorama Music, and partnered with Viva Music and Artists Group in the Philippines. In August, Universal Music Group-owned Virgin Music Group acquired United Arab Emirates-based Chabaka. In 2022, Warner Music Group purchased a majority stake in Africori, the top digital distributor in Africa.
While TikTok and streaming services’ international popularity have leveled the playing field for local music around the world, Delange says YouTube has been the biggest driver of this trend over the last decade. For years, a debate raged throughout Europe and the U.S. about YouTube’s “value gap,” the difference between its ad-supported royalties and per-stream payments from competing subscription services. While the West was hesitant to embrace YouTube, Asian artists and labels embraced the opportunities for promotion, marketing and monetization, says Delange. In the West, YouTube was a problematic free platform. In the East, YouTube was a free platform with a massive audience. “That was revolutionary in a market that had been decimated on the physical side,” says Delange. It’s now proving the driver for a new stage of growth in the global music market.
Back in 2018, when music producer Sherman Nealy filed a lawsuit against Warner Music Group, it was just a run-of-the-mill copyright case. Nealy claimed that Flo Rida’s 2008 tune “In the Ayer” featured an unlicensed sample of “Jam the Box,” a 1984 track released by Pretty Tony that he owns.
It’s the same kind of claim that’s made in federal courts every day.
But five years later, Nealy’s lawsuit is now headed to the U.S. Supreme Court, which will use it as a vehicle to answer big unresolved questions about how much money can be awarded in copyright cases. Are those damages limited to just the last three years before a case was filed? Or can they range back decades, adding potentially many more millions to the total?
The high court’s eventual ruling, which the justices will issue next spring, will apply to all forms of copyrighted works, but the music industry is paying particularly close attention. In a filing earlier this year, record labels and music publishers called the case “exceptionally important” to their business.
Pay After Delay?
The controversy at the center of the case against Warner dates back to 2014, when the Supreme Court ruled that the movie studio MGM could be sued for copyright infringement over Raging Bull, even though the case was filed decades after the Martin Scorsese-directed film had first been released in 1980. The studio argued that long delay was unfair, but the justices pointed out that the Copyright Act has a three-year statute of limitations that resets with every new infringement.
Under the court’s interpretation of the law, as long as copies of an allegedly infringing book, song or movie had been sold during the three years prior to the lawsuit, it was fair game for a copyright case. Perhaps unsurprisingly, that ruling led to a surge in long-delayed infringement cases, including a high-profile lawsuit against Led Zeppelin over the 1971 song “Stairway To Heaven.”
But like many Supreme Court decisions, the Raging Bull ruling ultimately raised as many questions as it answered. Chief among them: if you can sue many years later, how far back can you seek damages? If you successfully sue someone in 2023 over a song that came out in 1995, can you demand payment based on 27 years of illegal sales?
In the Raging Bull ruling, the Supreme Court seemed to say no. In her opinion, the late Justice Ruth Bader Ginsburg was fairly clear: “A successful plaintiff can gain retrospective relief only three years back from the time of suit. No recovery may be had for infringement in earlier years. Profits made in those years remain the defendant’s to keep.”
In the years since, the New York-centric U.S. Court of Appeals for the Second Circuit has taken that language literally, ruling a copyright accuser cannot win damages for any for any conduct older than three years – full stop. If you wait to sue over a hit song from the 1990s, you cannot tap into those huge profits when you win the lawsuit.
But the U.S. Court of Appeals for the Ninth Circuit (covering California) disagrees. If you can prove that you only recently “discovered” the fact that your copyright was infringed, the Ninth Circuit says you can seek damages going back all the way to all the way back to the very first infringement – potentially decades worth of penalties.
That means the two courts that contain the vast majority of the country’s creative industries are directly divided over how copyright law works – a so-called “circuit split” that the Supreme Court is tasked with correcting.
Heading To Court
Nealy sued Atlantic Records, Warner Chappell and Artist Publishing Group in Florida federal court in 2018, arguing he had never actually granted them a valid license for his “Jam the Box” to be sampled in Flo Rida’s “In the Ayer,” which reached No. 9 on the Hot 100 after being released in July 2008.
In 2021, the judge overseeing the case cited Raging Bull and ruled that Nealy couldn’t win any money from earlier than 2015. Though Nealy said he had only learned of the illegal sample in 2016 and wanted damages going all the way back to 2008, the judge cited the Supreme Court’s “binding precedent” that had “explicitly delimited damages to the three years prior.”
But earlier this year, the U.S. Court of Appeals for the Eleventh Circuit overturned that ruling. Siding with the Ninth Circuit’s approach, the appeals court ruled that Nealy’s late discovery of the infringement was a different situation than the one dealt with in Raging Bull – and that any similar “discovery rule” cases would be allowed to seek damages as far back as they went.
Warner quickly appealed that decision to the Supreme Court. Repped by elite SCOTUS attorney Kannon Shanmugam of the law firm Paul Weiss, the company argued in a May petition that the “discovery” approach would unfairly expand the “financial exposure” of a copyright defendant and potentially lead to frivolous lawsuits that aimed to “extract settlements.”
“Deprived of a predictable limitations period and faced with expensive, time-consuming, and difficult litigation in order to defend years-old uses of copyrighted works, defendants will often be left with no choice but to settle claims early even in the absence of wrongdoing—or potentially never enter valuable agreements in the first place,” Shanmugam wrote for his client.
“Vitally Important”
The phrases “retroactive relief” and “three-year lookback period” might make your eyes glaze over, but the Nealy v. Warner case has big implications for copyright-heavy industries like music.
After the Raging Bull ruling dropped in 2014, artists and labels saw a rash of long-delayed cases. The lawsuit against Led Zeppelin – which resulted in more than six years of costly litigation before the band was ultimately cleared of all wrongdoing – was the most prominent, but it was just one of many. Meatloaf was sued over his 1993 song “I’d Do Anything For Love”; U2 was accused of ripping off its 1991 hit “The Fly”; and another case claimed that Notorious B.I.G.’s 1993 hit “Party and Bullshit” featured an unlicensed sample.
If the Supreme Court eventually rules in favor of Nealy, it would almost certainly encourage more age-old cases, creating a far larger potential prize for a successful accuser. As Nealy’s attorneys argued at an earlier stage of his case, when it comes to years-old copyright claims, “the vast bulk of damages” will typically fall outside the three-year limit.
Labels and publishers are watching the case closely. In a June brief at the Supreme Court, the Recording Industry Association of America and National Music Publishers’ Association didn’t advocate for either camp, but simply urged the justices to take up a case that is “vitally important to the music industry.”
“Because copyrights are the music industry’s most consequential asset, music labels and music publishers regularly find themselves both enforcing and defending copy right lawsuits,” lawyers for RIAA and NMPA wrote. “Without a clear national rule setting the temporal limits of recoverable damages, amici and their members face serious uncertainty.”
It’s been nearly 20 months since Neil Young pulled his music off Spotify and, according to Billboard’s estimate, the move has cost him about $300,000 so far in lost recorded music and publishing royalties.
On Jan. 24, 2022, the singer-songwriter gave the streaming company an ultimatum: “You can have Rogan or Young. Not both.” Young blamed Rogan and his Spotify-exclusive podcast, The Joe Rogan Experience, for spreading “fake information about vaccines” and putting the public’s health at risk. Spotify acquiesced a few days later and removed Young’s catalog from its platform.
Other artists in Young’s circle of friends, such as Joni Mitchell and Nils Lofgren, also requested that Spotify remove their music from the platform — and remain off to this day. But Young’s absence leaves the largest hole in Spotify’s catalog: 45 studio albums, two EPs and 12 live albums as a solo artist and with his band Crazy Horse, plus compilations and soundtracks, that includes such rock classics as “Cinnamon Girl,” “Heart of Gold” and “Rockin’ in a Free World.”
Young’s open letter and demand for removal from Spotify attracted worldwide media attention and caused a brief spike in streams, but his departure from the platform at the end of January 2022 created an immediate decline in his average stream rate — and it hasn’t rebounded since, according to Luminate data. From 2021 to Sept. 21, 2023, Young’s average weekly global on-demand audio streams declined 32% from 10.5 million to 7.1 million. The actual loss is deeper considering that weekly on-demand audio streams in the U.S., Young’s largest market, increased 25% over that period.
The impact of Young’s Spotify pullout isn’t much for an artist of his stature and net worth, but it’s not nothing, either. Each month Young is away from Spotify, he loses about $16,000 in royalties from both his record label and his music publishing, according to Billboard analysis of Luminate data.
In nearly 20 months, Young’s absence has cost him about 273 million on-demand audio streams. The gross amount of lost royalties during Young’s Spotify absence totals roughly $1.3 million. Billboard estimates that Young’s labels, Warner Music Group’s Reprise Records and Universal Music Group’s Geffen Records, have lost approximately $1 million in gross revenues, from which Young receives a royalty. Young’s gross publishing revenue has fallen about $270,000. Young sold 50% of his publishing rights to Hipgnosis Songs Fund in 2021.
Sales of Young’s music in the U.S. have dropped, too, although whether his absence from Spotify played a role is unknown. So far in 2023, Young has sold about 25% fewer albums per week than compared to 2021; 2022’s weekly average was 9% below 2021 levels. Physical album sales, which outnumber digital album sales nearly eight-to-one for Young, are down 24% from 2021 to 2023. This year, weekly digital album sales are off 29% from 2021 (they increased 3% in 2022). Young’s weekly digital track sales have fallen by 35% from 2021 to 2023.
The cumulative effect of the sales slowdowns amounted to 59,000 fewer album sales and 54,000 fewer track sales over nearly 20 months. (Luminate does not track the Neil Young Archive, an online subscription service that provides access to a vast catalog of Young’s audio and video, but in October 2019 Wired reported it had 25,000 subscribers with a goal to reach 40,000 paying $1.99 a month.)
There’s much more to Young’s career than Spotify, though, and plenty of other ways for him and his rights holders to earn off his music. In the last 18 months, for example, Young’s music has been used in over 75 TV and film synchs, according to a person with knowledge of the songwriter’s business. These have included the NBC series “This Is Us” (Jill Andrews’ cover of “Only Love Can Break Your Heart”), the AMC series “Dark Winds” (Young’s recording of “Birds”), the Hulu series “Poker Face” (Young’s recording of “Walk On”), “The Tonight Show Starring Jimmy Fallon” (the band’s performance of “Old Man”) and “Sunday Night Football” (Beck’s cover of “Old Man”).
One place you won’t see Young’s music is advertisements. Young is famously opposed to using his music to sell products and advertise corporate brands. Young encapsulated his distaste for putting music in advertisements in his 1989 song “This Note’s For You” — a take on a Budweiser ad slogan from the era, “This Bud’s For You.” “Ain’t singing’ for Pepsi, ain’t singing for Coke,” Young sang in the album’s title track. “I don’t sing for nobody, makes me look like a joke.” The song’s video stirred up controversy — and was initially banned from MTV — for its mocking depiction of a 1984 Pepsi commercial shoot during which pyrotechnics set Michael Jackson’s hair caught fire.
Surely, Young has lost untold millions of dollars over his career in potential ad sales and endorsement deals. But as an artist who’s always clearly voiced his principals and stood by them, he’s long made it clear money is not his first priority.
In late August, Billboard reported that BMI is in serious discussions to sell itself to New Mountain Capital for $1.7 billion, less than a year after the organization announced it was switching for a for-profit model. No deal has been signed, but talks are serious enough that the two sides have entered into exclusive negotiations, and the change in the way BMI operates — especially after the industry became aware of how much profit it has generated in its most recent fiscal year — has triggered an avalanche of questions from songwriters and music publishers. The most important: Will BMI’s future profits come at the expense of royalty payouts to its more than a million affiliated songwriters and publishers.
BMI had $147 million in earnings before interest, taxes, depreciation and amortization in its most recent — but as yet unannounced — fiscal results, according to Reuters. The question is where this money came from.
“Where does profit come from for a performance rights organization?” asks one veteran music publishing executive. “It can come from only two buckets — the cost bucket or the royalty distribution bucket.” And that executive, like several others, believes that BMI “definitely didn’t cut $147 million in expenses.”
Although BMI made news in October 2022 when it announced it would begin to operate on a for-profit basis, all four U.S. performance rights organizations are actually set-up as for-profit corporations – BMI and ASCAP both file form 1120 with the I.R.S., as SESAC and GMR likely do as well. For decades, though, the first two have operated as not-for-profit companies, which likely means that since they pay out all the royalties they collect, minus expenses, they have no profit on which to pay tax. ASCAP’s Articles of Association states that “all royalties and license fees collected by the society shall be…distributed among its members,” except for expenses and contributions to a reserve fund.
BMI has always operated the same way, even though it has always been a private company owned by radio and television companies. In July 2022, though, rumors started spreading about BMI’s plans to change its operations, and the company hired Goldman Sachs to shop the company, preferably to a company which can fill the role of a strategic, but non-industry, partner. That effort didn’t result in a sale, either because the not-for-profit model BMI operated under at the time left it without any profit to show potential buyers, according to some sources; or, as other sources say, because BMI didn’t find a partner at that time that shared its vision of prioritizing the interests of songwriters.
Last October, when BMI announced it would switch to operating on a for-profit basis, the initial reaction in the industry was muted. This summer, however, when Reuters reported that BMI was once again up for sale — and that it had generated $147 million in earnings before interest, taxes, depreciation and amortization — creators expressed alarm, especially at the idea that those earnings might have been taken out of their royalties.
On Aug. 17, five creators groups sent an open letter to BMI CEO Mike O’Neill that asked 17 questions about BMI’s new business model, including whether songwriters and publishers would receive any of the proceeds from a potential sale, how the organization generated so much profit, and how it could continue to do so without reducing payouts to songwriters and publishers, the last of which is an especially significant worry, according to sources. The letter came from the Black Music Action Coalition, the Music Artists Coalition, the Songwriters of North America, SAG-AFTRA, and the Artists Rights Alliance.
So far, the only music publisher to comment on the changes at BMI is Universal Music Publishing Group chairman and CEO Jody Gerson, who said in a statement that, “We will only support changes that increase value for songwriters and will not stand for any that result in our songwriters being paid less than what they deserve.” Other publishers would not comment on the record but expressed concerns.
On Aug. 18, O’Neill responded in a letter to the creators groups and acknowledged that they raised “some important questions” about BMI’s evolution. (His letter was shared with Billboard, and published in full along with a story on it.) He said that the change would allow BMI to invest in its business in order to grow, plus increase payouts. Most important, O’Neill wrote, in the event of a sale, BMI “would ensure that any partner embraces our mission of prioritizing the interests of songwriters, including their financial success. This is especially important as we navigate this rapidly changing industry together.”
(BMI executives declined to be interviewed for this article but they responded to questions with emailed statements, issues other statements for two other stories on the issue, and provided Billboard with the letters O’Neill wrote in response to the creators groups.)
“Relying on the past never sustained a business for the future,” BMI said in an Aug. 29 statement to Billboard. “Our goal is to stay ahead of the changing industry and invest in our business to grow the value of our affiliates’ music.”
O’Neill’s initial letter didn’t satisfy the groups behind the letter, which followed up with another letter to BMI on Aug. 25, which was also obtained by Billboard. “While we appreciated you responding to our letter,” it read, “all of our questions went unanswered.” So far, sources involved with the music creators groups argue. BMI has still not responded to most of the questions in the original letter.
SLICING A FOR-PROFIT PIE
The other big question hanging over a potential sale of BMI is what it would mean for its competition against and its relationships with the other collective management organizations that it competes with but also collects money for and in turn receives royalties from under reciprocal agreements. Because of BMI’s change in governance, it has gone from being a member of CISAC, the international organization of CMOs, to a client, so it is no longer bound by the organization’s transparency rules but will still have access to its data systems.
ASCAP, BMI’s main competitor in the U.S. for more than eight decades, had a pointed take, which it shared in a social media campaign clearly aimed at BMI, though it did not mention the company by name. Its tweets included “We pay songwriters, not shareholders;” “growth without greed;” “Not for profit since 1914 and still growing;” and “There is no I in ASCAP.” Asked to respond, BMI issued a statement: “Our focus is not on how our competitors position themselves, our focus is on delivering for our affiliates.”
So far, BMI has made record payments to affiliates under its for-profit model, the company claims. In a Sept. 5 letter, posted on BMI’s website, O’Neill points out that the company has made three distributions under the new model, each higher than the corresponding one from the previous year. BMI said in an emailed statement that the three combined payments are 9% higher than they were in the previous year. Two of those payouts, according to O’Neill’s Sept. 5 letter, “are the “largest in [the] company’s history.” BMI also set a record in 2022, when it collected $1.573 billion, a 15.58% increase over the previous year, and distributed what it called an “unprecedented” $1.471 billion, a 10.2% increase.
If BMI’s core business keeps growing, it would be relatively easy for the company to continue to increase annual payouts, while keeping healthy profits for itself, industry financial executives point out. From now on, though, songwriters and publishers will have to take BMI’s word for its financial success because, according to sources, its 2022 results are the last ones it will make public. The kind of financial information BMI has traditionally shared would allow publishing executives to see where BMI’s EBITDA is coming from – which could potentially fuel further debate about how much of that money ought to have gone to rightsholders, but didn’t.
Going forward, BMI will instead emphasize and expand the financial information it provides to individual songwriters and their publishers to allow them to compare its payouts with previous years – and potentially, if BMH songwriters so choose, with those going to their co-songwriters who are affiliated with other PROs. That information would show affiliates that it takes its obligations to pay creators competitively, say sources familiar with BMI’s thinking.
BMI’s reluctance to share information is not unique. Both SESAC and Global Music Rights (GMR) operate under a for-profit model, and neither shares information about its overall financial results. Sources speculate that GMR, a boutique U.S. performance rights organization that represents top-tier writers for performance rights licensing, collects more than $150 million. Less is known about SESAC’s financials, which it guards closely, but in 2013 when investment firm Rizvi Traverse acquired a 75% interest in the company, Billboard obtained the financial information used to shop the company which showed that in 2011 SESAC took in $128 million in collections, and paid out $60 million in distributions, leaving itself with $68 million in net publisher’s share. After $27 million in expenses, the company realized $41 million in EBITDA, an EBITDA margin of 32%, according to Billboard calculations. (Rizvi Traverse subsequently sold SESAC to Blackstone for about $1 billion in 2017.) For the year ended June 30, 2023, Billboard estimates that BMI has an EBITDA margin of 8.1%, although BMI is unlikely to make public these financial results. In other words, SESAC’s 2011 EBIDTA margin was four times larger than BMI’s, Billboard estimates.
SESAC and GMR declined to comment or could not be reached to comment on their profitability. But an executive familiar with SESAC’s strategy noted, “everyone who’s affiliated with SESAC has known SESAC is a for-profit” company. The implication is that it didn’t switch models, as BMI did.
The same goes for GMR, and some industry sources find it ironic that Irving Azoff, who founded the for-profit GMR, is on the board of two of the creators groups leading the charge in criticizing BMI. Like SESAC, GMR has always made clear to songwriters that it operates as a for-profit business, and it shows its affiliates a rate card with the amounts of money it collects from different licensees, sources say, so they can compare that to other PROs. It sticks to those rates, unlike BMI and ASCAP, which have bonus plans, explained on their respective web sites, which pay out more money per play to songwriters who accumulate a certain number of plays.
At BMI and ASCAP, for example, a pop song might generate a payout of about a dollar a play on a popular big-city radio station, but a composition that qualifies for a bonus could generate three times that much, to use a simplified example. These bifurcated rate structures apply to most big genres, and to subscription streaming and satellite radio play, as well as terrestrial radio. While some songwriters and executives argue that it’s not fair to pay top songwriters and their publishers at a higher rate, since their songs accumulate more plays anyway, these plans allow BMI and ASCAP to compete for top writers with SESAC and GMR, which are not bound by antitrust consent decrees the way BMI and ASCAP are. For BMI and ASCAP, having those top writers helps them get better rates from licensees. “A rising tide lifts all boats,” as one PRO executive says.
Even so, these plans show how the two big PROs structure their businesses in order to pay different rates to songwriters, which sources suggest BMI had to do even more in order to generate a profit.
Sources familiar with BMI’s thinking dismiss as inaccurate the idea that it will change the way it pays songwriters and publishers and BMI in an email to Billboard called this unfounded speculation. But other industry sources suggest that BMI’s switch to a for-profit model gives it an incentive to grow that would make such a switch worth considering. And there are plenty of ways it could do so. “There are a lot of rule changes they can make there and in other places to get dribs and drabs that would impact people equally but not so noticeably,” says an executive at a competing PRO. As another executive notes, paraphrasing a music publishing saying, “If you get a crumb here and a crumb there, eventually you have a loaf of bread.”
If BMI does decide to alter its payout structure, changes are likely to come at the expense of less popular songwriters on the so-called long tail, argue other sources, or smaller publishers who are less likely to push back. “The people with no representation are at the biggest risk in the for-profit model,” the music publishing executive says. “For sure, [BMI’s profit] will come out of the pocket of many, many people who are currently paid little amounts of dollars.”
Another executive familiar with BMI’s plans says that this kind of speculation is nonsense, and O’Neill said in the Sept. 5 letter that there is no truth to these rumors. “The industry’s most successful music creators didn’t start out that way,” he said in the Sept. 5 letter, “and we pride ourselves on our work helping to guide, develop, and support your talent to ensure your passion can also be a profession.”
Not everyone is convinced, though. “In the music industry,” says another veteran executive, “we usually oil the squeaky wheels with money.”
OTHER QUESTIONS
Even after these two big questions are addressed, others remain. One: Will BMI loosen its rules on songwriter departures, since its switch to a for-profit model represents such a dramatic change in how it operates?
More immediately, will BMI’s balancing act – operating for-profit while continuing to make sure its affiliates are paid fairly – appeal to a private equity player? The company already operates under a consent decree, and its first attempt at a sale, in the summer of 2022, didn’t succeed.
It’s also hard to predict what effects a potential BMI sale to a private equity fund would have on its regulatory environment, from the possibility of more antitrust scrutiny from the U.S. Dept. of Justice to the chance of a renewed look at a compulsory license for public performances.
And the big question driving all of the arguments still remain unanswered. If BMI does make a deal to sell itself, will songwriters and publishers share in what sources suggest is a $1.7 billion valuation price? Will some of that money be earmarked for infrastructure improvements? Or will all of it go to the radio and TV stations that own BMI? Since BMI has taken in an average of about $238 million a year in annual licensing fees from terrestrial radio and broadcast television over the last half-decade, that means that a price of about $1.7 billion would fund about a seven-year licensing rebate for BMI’s owners.
Will Hipgnosis Songs Fund, a trailblazer in making music an alternative asset class in the financial world, fight to see another day? The sale of catalogs for $465 million, announced Thursday, is meant to help Hipgnosis Song Fund’s sagging share price and bring it closer to the company’s per-share net asset value (NAV). But it also intends to give investors a reason to vote for a five-year continuation in the annual meeting that’s likely to be held in October.
Given its need to shore up investor support, the catalog sale didn’t come as a surprise. Board chair Andrew Sutch said at a July 13 investor presentation that the board was pursuing options to boost shareholder value, and Hipgnosis has said that many of its largest shareholders favor share buybacks and partial debt repayment to help the struggling share price. This transaction provides the capital for those measures: Hipgnosis intends to use $180 million for share buybacks and $250 million to pay down the revolving credit facility.
Whether the deal ultimately succeeds depends on investors’ belief they are getting a good deal on the sale — the majority of which is to a sister company, the Blackstone-backed Hipgnosis Songs Capital (a joint venture with the royalty fund’s investment advisory, Hipgnosis Song Management, led by Merck Mecuriadis). Hipgnosis Songs Fund has long traded at a steep discount to its per-share NAV. That could partly be explained by higher interest rates that make the royalty fund, launched when interest rates were lower, a relatively less attractive investment to safer bonds. A larger factor could be investors’ lack of faith in NAV. Hipgnosis, which has argued the share price does not accurately reflect the value of its catalog, is now giving the market a transaction to help prove its point.
In the days following the announcement, some analysts have shown concern about the deal’s terms, transparency and related-party buyer. Investec analysts criticized the deal for valuing the assets “as being little more than the IPO price” in an investor note on Friday (Sept. 15) and stated, “there is substantial value leakage to related parties that again sadly raises significant corporate governance concerns.”
Numis predicts that Hipgnosis investors’ views will be “mixed, particularly given the Round Hill offer,” analysts wrote in a Sept. 14 investor note. In that deal, announced Sept. 8, Round Hill Music Royalty Fund — a royalty fund listed on the London Stock Exchange like Hipgnosis Songs Fund — received a buyout offer from U.S. music company Concord. Unlike the Hipgnsosis deal, Concord bid for the entire publicly traded company — at a price 11.5% below Round Hill’s net asset value. It’s a more straightforward transaction than Hipgnosis’ proposed partial catalog sale.
Numis believes that Hipgnosis’ share price’s discount to NAV “may persist for some time,” which could mean the board and the investment advisor, Hipgnosis Songs Management, “will continue to come under pressure.”
Analysts at Stifel, who have long been critical of Hipgnosis and Round Hill’s music royalty funds’ valuation methodologies, focused on the value Hipgnosis Songs Fund was extracting from Hipgnosis Songs Capital. The $465 million transaction consists of two parts. The first disposal worth $440 million, which accounts for 95% of the purchase price, is 17.5% below the fair value and 26% above the catalogs’ acquisition price.
Little is known about the smaller, second disposal that amounts to a $25 million slice of a catalog acquired from Kobalt Music in 2020 for $323 million. Hipgnosis Songs Capital is not the buyer of the second disposal.
Adding to the deal’s complexity, Hipgnosis Songs Fund is on the hook for bonuses and other payments under the original acquisition agreements; the company believes that will amount to $5.5 million, and it will be capped at $30 million. In addition, Hipgnosis Songs Capital is due royalties on the acquired catalog earned going back to Jan. 1 — about $15.3 million through Sept. 14.
“The complex nature of the deal suggests that it is hard to say the NAV has been validated,” wrote Stifel analyst Sachin Saggar.
If the share price is any gauge of investors’ initial reaction to the deal, opinions aren’t good. Shares of Hipgnosis Songs Fund dropped 6.5% on Thursday and another 7% on Friday. The 13% two-day decline eliminated nearly all of the 15.7% bump the share price received on Sept. 8 following news of Concord’s bid for Round Hill.
If investors are considering what Hipgnosis Songs Fund has left after the sale, they will find many jewels remaining in its catalog, including Neal Schon of Journey, Christine McVie and Lindsey Buckingham of Fleetwood Mac, Red Hot Chili Peppers, Tom DeLonge of Blink-182, Neil Young, Blondie, Steve Winwood, Rodney Jerkins, Chrissie Hyde of the Pretenders, RZA, Teddy Geiger and The Chainsmokers. Five of those names — Journey, Red Hot Chili Peppers, Blink-182, Fleetwood Mac and The Chainsmokers — rank in the year-to-date top 500 recording artists ranked by global on-demand audio streams, according to Luminate. Two of them, Red Hot Chili Peppers and Fleetwood Mac, are in the top 100. It’s also keeping Walter Afanasieff, co-writer of Mariah Carey’s “All I Want for Christmas Is You,” which is a No. 1 song in the United States, United Kingdom and Canada every November and December.
Hipgnosis is giving up some quality, though: The 29 catalogs in the first portfolio include 21 of 473 songs in Spotify’s Billions Club, five of Rolling Stone’s 500 Greatest Songs, and five of YouTube’s 30 most-viewed music videos. They include some older music by Barry Manilow and Rick James as well as newer artists like Poo Bear, RedOne, Martin Bresso and Colombian star Shakira, who ranks No. 55 in global audio on-demand streams. But, on average, these are younger songs with less proven royalty histories than the average song in Hipgnosis Songs Fund’s portfolio. In general, younger songs are less valuable than older, more established songs. Shareholders will vote on the sale at the annual general meeting.
The second disposal represents “non-core” assets worth $25 million that represent a small portion of the 33,000 songs acquired from Kobalt Music for $323 million in 2020. That deal also included the 18,000-song publishing catalog of Canadian music company Nettwerk. Hipgnosis Songs Fund said at the time it paid Kobalt an 18.3 times net publisher share multiple for the catalogs.
Hipgnosis believes the two disposals achieve multiple aims. The $465 million price tag is “the smallest possible that would provide the required capital” for share buybacks and debt repayment, the company stated in a press release. Also, the catalogs the company chose to sell leave intact “the fundamental investment case for Hipgnosis Songs Fund….by protecting the strength of the remaining portfolio.” Come October, we’ll see what investors are thinking.
Why is the music business picking on Brewster Kahle? All the technology activist wants to do with the Internet Archive, which he founded in 1996 and still chairs the board of, is create a digital library that offers “universal access to knowledge.” Isn’t that the promise of the digital age — that anyone with an internet connection can access anything ever created?
Turns out it’s more complicated than that. On Aug. 11, Universal Music, Sony Music and Concord Music filed a lawsuit, managed by the RIAA, against the Internet Archive, Kahle’s foundation, Kahle himself and an audio archivist who worked on the project, for infringing the copyrights to old recordings that the Internet Archive makes available through its “Great 78s” project to digitize old recordings originally issued as 78rpm records.
Already, in June 2020, four big book publishers had sued the Internet Archive for making available for a limited time copy-protected digital versions of books — first as many as it had in its collection or those of its partners, then during the pandemic, with its National Emergency Library, as many as users wanted. The publishers won on summary judgement, although the Internet Archive has said it will appeal.
The Internet Archive does lot of worthwhile work: its Wayback Machine tracks old web pages, offers access to considerable information in the public domain, and boasts an expansive collection of live Grateful Dead recordings. The Great 78s project makes available some old recordings that might otherwise be lost, but according to the RIAA lawsuit it also offers streaming access to plenty of recordings that are big business, including Bing Crosby’s iconic version of “White Christmas” — by some measures the most popular recordings of the 20th century — plus Buddy Holly’s “Peggy Sue,” Chuck Berry’s “Roll Over Beethoven” and Frank Sinatra’s “I’ve Got the World on a String.” The 78, may be an obscure format, but some of the music originally released that way is still relatively popular.
The Internet Archive responded in a blog post that it’s a “lawsuit targeting obsolete media.” “When people want to listen to music they go to Spotify,” Kahle said in a statement on the blog. (The Internet Archive did not comment other than pointing to this post.) “When people want to study 78rpm sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn’t be conflict here.”
Except that many of those “78rpm sound recordings” aren’t obsolete at all — they’re the exact same recordings that are on Spotify, plus Apple Music and other streaming services. The versions available on the Internet Archive sound scratchy, but the recordings themselves weren’t originally created that way, and the wear on the particular 78s that were digitized by the archive is less about the history of recorded music than about how careful a particular person was with his or her records.
Kahle presents himself as a “digital librarian” who’s making books — and music and other media — available the way libraries always have. But it’s worth remembering that the legal arguments for the Internet Archive’s book-lending program aren’t based on the provision of copyright law that provides exceptions for libraries. Instead, the archive’s legal claim is that copying and distributing books temporarily is fair use. Which means that, if the Internet Archive had won, any library — or, importantly, perhaps any nonprofit entity that defined itself that way, or maybe any entity at all — could copy books it had purchased in order to distribute them. (The archive, in turn, says that its loss is a disaster for libraries, since they have to license books from publishers; but shouldn’t libraries — an essential public good — be funded by the public in a way that’s fair to creators and rightsholders?) Kahle, who has campaigned for years against what he sees as the excesses of copyright, seems to want to change the law.
“The fact that you own a particular copy doesn’t mean that you can make and distribute copies of that copy — this is basic copyright law,” said Maria Pallante, chief executive of the Association of American Publishers (AAP), which helped to guide the publishers’ lawsuit. “They were trying to bloat fair use, while also asserting a first sale defense that applies only to tangible goods, not bootleg digital files.”
The RIAA is suing at least partly to establish case law behind the part of the 2018 Music Modernization Act, which extended federal copyright protection to recordings made before 1972, which were previously only covered under state law. The labels may also want to collect damages: Since statutory damages for willful infringement can be set by judges or juries at up to $150,000, this case could potentially cost the Internet Archive as much as $412 million. “This is the kind of egregious behavior that the Music Modernization Act was intended to address,” says RIAA CEO Mitch Glazier.
Recordings were only covered under state law until the Copyright Act of 1976, but it wasn’t retroactive. And although some opponents of copyright characterized the Music Modernization Act as a land grab by media companies, that doesn’t hold up: Some state laws made it unclear whether copyright protection ever lapsed at all. Indeed, one reason that sound recordings copyrights were federalized in the first place was to help libraries and archives take advantage of the exceptions and limitations that exist in federal copyright legislation, including fair use and specific exceptions for libraries and archives.
As it happens, the subject of federal copyright protection for pre-1972 recordings was studied in a 2011 report by the Register of Copyrights, and substantial attention was devoted to “challenges of preservation and access.” “Substantively,” the report recommended, “the use of section 108 and the fair use exception should encourage more preservation and public access because they provide time—tested rules with which libraries and archives have experience.”
The law under which the Internet Archive is being sued was actually set up partly to help it and other archives, especially in its “orphan works” provision, the result of a compromise between Music Modernization Act proponents and opponents, that allows organizations to use pre-1972 recordings for non-commercial purposes after checking to make sure they’re not in commercial use. (There’s a procedure for this.) If the Great 78s project really intends to make available music that is in danger of disappearing, the law allows for that. Why aren’t Kahle and the Archive following it? It’s hard to imagine that Kahle doesn’t understand the law.
And that’s why the music business is picking on Brewster Kahle — because it sometimes seems as though the Internet Archive is as much about pushing the boundaries of copyright law as it is about preserving creative works in the first place. Libraries play a crucial role in any democratic society, and Kahle and the archive do a lot of important work. But so do the performers and songwriters — and, yes, the labels and publishers — who made all of these recordings possible in the first place.