Mechanical Licensing Collective
Spotify is demanding that a federal judge toss out a lawsuit filed by the Mechanical Licensing Collective over royalty rates, calling the case “nonsensical” and “wasteful.”
The MLC sued earlier this year, claiming Spotify had “unilaterally and unlawfully” chosen to cut its music royalty payments nearly in half through bookmaking trickery – namely, by claiming that the addition of audiobooks to the service entitled the company to pay a lower “bundled” rate.
But in a motion to dismiss filed in court Tuesday, Spotify calls those claims “meritless and wasteful” – arguing that making hundreds of thousands of audiobooks available to subscribers was not a “token” gesture aimed at reducing music royalties.
Trending on Billboard
“MLC’s position is nonsensical and factually unsupportable,” Spotify’s lawyers write. “And it profoundly devalues the contributions of the tens of thousands of book authors whose works are available with a Spotify Premium subscription—from literary luminaries, to mainstays on best sellers lists, to up-and-coming writers who are finding their audience.”
The MLC, which collects streaming royalties for songwriters and publishers, filed its lawsuit in late May — a week after Billboard estimated that Spotify’s move would result in the company paying roughly $150 million less over the next year. In its complaint, the MLC claimed Spotify was “erroneously recharacterizing” the nature of its streaming services to secure the lower rate.
“The financial consequences of Spotify’s failure to meet its statutory obligations are enormous for songwriters and music publishers,” the group’s attorneys wrote at the time. “If unchecked, the impact on songwriters and music publishers of Spotify’s unlawful underreporting could run into the hundreds of millions of dollars.”
At issue in the lawsuit is Spotify’s recent addition of audiobooks to its premium subscription service. The streamer believes that because of the new offering, it’s now entitled to pay a discounted “bundled” royalty rate under the federal legal settlement that governs how much streamers pay rightsholders.
In Tuesday’s motion, Spotify’s lawyers strongly defend that interpretation. They argue that the market for audiobooks has attracted “billions in consumer dollars” and that adding books was the kind of valuable new perk that had been intended to be covered by the lower bundled rate.
“At the heart of this dispute is an easily answered question: Is audiobook streaming distinct from music streaming, offering greater than token value?” the company’s lawyers write. “The answer is indisputably yes, and there is no need for federal court litigation to confirm it.”
The rule at issue says that streamers can use the bundled rate if they offer “one or more other products or services having more than token value.” Claiming that more than 200,000 audiobooks does not qualify under that rule is “baffling,” Spotify’s lawyers write.
“The creative output of these authors is not merely of ‘token value’,” Tuesday’s filing says. “Acceptance of that unassailable, commonsense proposition should end this meritless and wasteful litigation.”
MLC’s attorneys will file a formal response to the motion in court in the coming months. In a statement to Billboard on Thursday, the group said: “The MLC’s general practice is not to comment publicly on pending litigations. That said, we would reiterate that we take the enforcement obligations assigned to us by Congress extremely seriously and would refer you to the complaint we filed in this matter for more details regarding our position on this matter.”
As the author of the Music Modernization Act (MMA), I am thrilled with the benefits it has provided music creators and music streaming services. Rarely does Congress come together in a bipartisan, bicameral way to respond to a market problem with a comprehensive, collaborative and business-driven solution.
The bill updated copyright law for the digital generation, and the cornerstone of the legislation — the creation of the Mechanical Licensing Collective (MLC) — has been a shining example of an industry working together to solve major market challenges. However, recent attempts by streaming services to redefine the original intent of the statute, to benefit themselves, are concerning and must be corrected.
The MLC was created to solve a massive music industry problem. Streaming services often failed to find the correct copyright owners and therefore held on to large sums of money owed to songwriters and music publishers. This both kept earnings from rightful owners and also opened streaming services up to large amounts of liability — from which lawsuits were piling up, costing them hundreds of millions of dollars. Both sides had a major incentive to find a better way forward.
Trending on Billboard
Along with my colleague, Congressman Hakeem Jeffries (D-NY), I authored a bill to establish a company that would be funded by the digital streaming companies, and governed by copyright owners, which would receive all of the streaming mechanical money owed and then distribute that money based on copyright ownership. The company would also operate a first-of-its-kind public database so that song ownership information would be more transparent than ever.
To create the MLC, the U.S. Copyright Office held an impartial designation period where anyone could campaign to run the company. A coalition representing the vast majority of the music publishing and songwriting industry came together and was selected.
In five short years, the MLC was activated and is now a towering example of success. It has distributed over $2 billion in royalties to publishers and songwriters. It has a match rate of over 90%. It operates the most accurate, open database of music rights information in the world.
Crucially, as the MLC is responsible for ensuring accurate payments to its songwriter and publisher members, the MMA made clear that it not only has the authority but is mandated to enforce the rights of its members if it determines any streaming service is not reporting or paying properly. Most recently, the MLC was forced to litigate against Pandora for underpaying royalties.
Unfortunately, this has led DiMA, which represents the major streaming companies and has a seat on the MLC’s board, to attempt to reinterpret the original intent of the MMA. They are pushing the misguided idea that the MLC was meant to be “neutral” when it comes to enforcing the rights of copyright owners. Nothing could be further from our objective.
This definition of neutral is simply another way to take the voice away from those who have struggled to be heard when it comes to receiving what they are owed for their labors. This was never the intent.
Should the MLC not enforce and litigate when necessary to uphold the rights of its members, those members would have absolutely no recourse to defend their property rights. This notion of neutrality would make the MLC toothless and completely undermine the important role of the Collective. Allowing the MLC to dole out royalties is inextricable from its primary purpose of ensuring those royalties are correct.
It is a perversion of the legislation to attempt to convince current lawmakers that the MLC was meant to give equal weight to the opinions of the digital companies as the rights of songwriters. Of course, there is a massive incentive for DiMA and its membership to want the MLC to relinquish its role as enforcer of music creators’ copyrights. Billions of dollars in royalties are on the line.
The streaming services’ vision of a neutral MLC is not in line with the original intent of the MMA, and they know it because they were intimately involved in the lengthy negotiation of the language of the bill. The resulting legislation was fair and allowed for the collective and the courts to do their jobs when it comes to disputes.
The five-year milestone since the MMA was signed into law is an important time for reflection and refining. However, it is not a time to redefine the most important music legislation of our time.
Doug Collins is a lawyer and former Member of Congress representing Georgia’s Ninth Congressional District. He served as Ranking Member of the House Judiciary Committee as well as Vice Chairman of the Subcommittee on Courts, Intellectual Property, and the Internet. He introduced the Music Modernization Act along with the bill’s lead cosponsor, Rep. Hakeem Jeffries (D-NY).
The Mechanical Licensing Collective (the MLC) has filed a lawsuit against Spotify, calling the way the streamer reclassified its premium, duo and family plans as “bundles” and started paying a discounted royalty rate to publishers and songwriters “improper.”
Explore
Explore
See latest videos, charts and news
See latest videos, charts and news
“The financial consequences… are enormous for songwriters and music publishers,” the MLC writes in the complaint.
News of the lawsuit arrives just a week after Billboard published its estimate that publishers and songwriters will earn about $150 million less in U.S. mechanicals in the next year, compared to what they would have been owed had the services not been bundled.
The root of the conflict started late last year when Spotify added 15 hours of free audiobook listening to Spotify premium, duo and family plans in the United States and other markets. At the time, this was a free extra for subscribers, and Spotify continued to pay the original full mechanical royalty rate for musical works in the United States.
Trending on Billboard
Starting in March, however, Spotify quietly launched an audiobook-only plan, then started to reclassify its premium, duo and family plans as bundles because audiobooks were included. According to Phonorecords IV, the agreement that dictates U.S. mechanical royalty rates for 2023-2027, bundles of multiple products are an inherently different type of subscription and thus use a different, lower royalty rate, given that multiple offerings must be paid for from the same subscription price.
In the lawsuit filed by the MLC, which processes and distributes mechanical royalties to publishers and songwriters in the United States, the organization argues “premium is exactly the same service” as it was previously. “Prior to March 1, Spotify paid mechanical royalties on the entirety of Premium revenues, subject to certain specific reductions identified in Section 115, despite the fact that Premium subscribers also had access to the same number of hours of audiobooks as Audiobooks Access subscribers now have,” the lawsuit reads.
“On March 1, 2024, without advance notice to the MLC, Spotify unilaterally and unlawfully decided to reduce the Service Provider Revenue reported to the MLC for Premium by almost 50 percent,” reads the complaint. “[This was done] by improperly characterizing the service as a different type of subscription offering and underpaying royalties, even though there has been no change to the premium plan and no corresponding reduction to the revenues that Spotify generates from its tens of millions of Premium subscribers.”
Spotify provided a statement to Billboard in response to the lawsuit, saying: “The lawsuit concerns terms that publishers and streaming services agreed to and celebrated years ago under the Phono IV agreement. Bundles were a critical component of that settlement, and multiple DSPs include bundles as part of their mix of subscription offerings. Spotify paid a record amount to publishers and societies in 2023 and is on track to pay out an even larger amount in 2024. We look forward to a swift resolution of this matter.”
Reports of Spotify’s change to its royalty rate structure for premium, duo and family plans first arrived in April. Immediately, the National Music Publishers’ Association (NMPA) began speaking out against Spotify’s reclassification, calling it an “end to our period of relative peace” and “potentially unlawful.”
On Wednesday (May 15), the NMPA sent Spotify a cease and desist letter regarding a separate issue: allegedly unlicensed lyrics and video. In the letter, NMPA general counsel/executive vp Danielle Aguirre also mentioned there might be some publishing content that “will soon become unlicensed” by its members. Spotify fired back at the letter in a statement, which read: “This letter is a press stunt filled with false and misleading claims.”
In its lawsuit filed Thursday, the MLC claims that to qualify for the bundle subscription rate, “an offering must include at least two distinct products or services. Premium does not,” adding, “Premium already consisted of unlimited music and access to other audio products including up to 15 hours of audiobook listening” as well as other offerings like podcasts.
The MLC further argues that the audiobook-only plan Spotify launched in March is not a different product, saying that it offers more than just audiobooks. “New Audiobooks Access subscribers are being granted access to 15 hours of audiobooks listening and the same access to unlimited, ad-free, on-demand music that Premium subscribers are provided. The only difference is that subscribers to Audiobooks Access are paying $9.99 per month, rather than $10.99, to receive the same product,” reads the complaint.
The MLC also notes that the “audiobook access subscription page does not appear to be directly accessible from Spotify’s website” — making the point that the offering is difficult to find. As a consequence, the MLC says it believes “there is little doubt that the number of subscribers who will sign up for Audiobooks Access is likely to be a fraction of the Premium subscribers.”
A few months ago, the MLC also sued Pandora, another streaming service it collects mechanical royalties from in the United States, for what it says is a failure to properly pay streaming royalties. That lawsuit is ongoing.
The MLC and the Digital Licensee Coordinator (DLC) — the organization intended to represent the majority interests of digital music providers affected by the blanket license set up by the Music Modernization Act (MMA) — are also currently in the process of their first five-year check-up (called a “re-designation” process) to ensure both are effectively fulfilling their duties. This routine, five-year check, conducted by the U.S. Copyright Office, allows the two organizations to self-report on their progress and gives key stakeholders — including the Digital Media Organization (DiMA) — the opportunity to speak to the strengths and weaknesses of the organizations.
The MLC’s operational costs are paid for by DiMA members, including Spotify, Pandora, Apple Music, Amazon Music and more, as set forth by the Music Modernization Act (MMA). In a blog post in March, DiMA’s CEO/president, Graham Davies, pointed out that the MLC is “suing one of the licensees [Pandora] that pays its costs.” The NMPA replied to this post by defending the MLC, saying that streamers “do not want what is in the best interests of music publishers or songwriters,” calling DiMA’s “new…strategy…an effort by the world’s largest digital companies to leverage their power to pay less.”
The NMPA’s president/CEO David Israelite provided a statement of support for the MLC lawsuit, saying, “we applaud the MLC for standing up for songwriters and not letting Spotify get away with its latest trick to underpay creators. The MLC is tasked with challenging services who falsely report royalties, and we commend their swift action. The lawsuit sends a clear message that platforms cannot improperly manipulate usage — in this case unilaterally redefining services as a bundle — in order to devalue music. We strongly support the MLC and will continue to pursue justice.”
Pandora is firing back at a lawsuit filed by the Mechanical Licensing Collective (the MLC) that claims the company has failed to properly pay streaming royalties, calling the case a “gross overreach” based on a “legally incoherent position.”
The MLC — the group created by Congress in 2018 to collect streaming royalties — filed the lawsuit earlier this year, accusing Pandora (a unit of SiriusXM) of misclassifying the nature of its streaming service to avoid paying the kind of higher royalties owed by “interactive” platforms like Spotify.
But in its first response to the case filed on Tuesday (April 16), Pandora calls the MLC’s lawsuit a “wild overreach” that “distorts the Pandora experience” — and one filed by an entity that is not even legally empowered to bring such cases.
Trending on Billboard
“The MLC … was intended to be a neutral intermediary charged with collecting and distributing royalties under the blanket license,” Pandora writes. “It is not authorized to play judge and jury over a streaming service’s legal compliance, nor was it created … to pursue legal frolics and detours such as this one.”
Pandora’s lawyers also say the lawsuit is based on a “a legally incoherent position” that has never been raised by the music companies for whom the MLC is collecting royalties: “The MLC seems to think it knows something the entire music industry does not.”
A rep for the MLC did not immediately return a request for comment.
At the heart of the lawsuit against Pandora is the distinction between “interactive” platforms like Spotify or Apple Music, which allow users to pick their songs on demand, and “noninteractive” platforms that provide an experience more like radio. It’s a key dividing line since interactive and noninteractive services pay very different royalties under different systems.
Though Pandora offers a premium tier with on-demand functionality, it has long treated Pandora Free — the core radio-like product that fueled the company’s rise in the late 2000s — as a noninteractive service, since it largely serves users a mix of songs based on their preferences.
But in a February lawsuit, the MLC argued that Pandora Free had crossed the line into “interactive” status by offering so-called “Sponsored Premium Access” sessions, which allow users to briefly play specific songs in return for watching ads. As a result, the MLC argued that Pandora owed the same kind of royalties for Pandora Free as services like YouTube or Spotify pay.
“Pandora provides even greater interactive access and functionality than these other ad-supported interactive streaming services,” the MLC wrote. “Despite the interactive functionality of Pandora Free, Pandora has failed to report in full Pandora Free usage to The MLC.”
In Tuesday’s response, Pandora’s lawyers argued that the MLC’s lawsuit “badly distorts reality” by making a “blatant mischaracterization of Pandora’s offerings.”
In their telling, the disputed “Sponsored Premium Access” sessions are merely brief previews of the company’s on-demand tier with “strict caps” on usage — not a wholesale feature that would “transform” Pandora Free “into an interactive service like Spotify or Apple Music.”
What’s more, Pandora says that feature was explicitly negotiated with music companies, who have never once objected to it or argued that it required Pandora to “fundamentally change its approach to licensing.”
“The MLC apparently thinks it knows better than the entire music publishing industry,” Pandora wrote. “Not only is the MLC operating far outside its administrative bounds, but it is also completely wrong on the law.”
Speaking with Billboard on Tuesday, George White, senior vp of music licensing at SiriusXM and Pandora, echoed the claims made by Pandora in the legal response.
“The lawsuit is really a gross overreach, especially when you consider that Pandora is such a well-known and well-established non-interactive music streaming service,” White said. “There are no checks and balances on the MLC. We believe that’s something, as part of the MLC redesignation, that the Copyright Office really needs to consider.”
White was alluding to the Copyright Office’s ongoing “redesignation process” of the MLC — a five-year check-up required by Music Modernization Act to ensure that the organization is functioning effectively. The first-ever redesignation started in January and is set to wrap up later this year.
Songwriters and publishers are due nearly $400 million in additional payouts following the Copyright Royalty Board‘s Phonorecord III final determination in August, according to information the Mechanical Licensing Collective (the MLC) released on Friday (Feb. 23). During the Phono III blanket license period (2021-2022), the MLC reports that digital service providers like Spotify, Amazon Music, […]
The Mechanical Licensing Collective (The MLC) has sued Pandora for allegedly failing to adequately pay and report its monthly royalties, including in its accounting for its ad-supported tier “Pandora Free” (also known as “radio” or “free Pandora”).
Explore
Explore
See latest videos, charts and news
See latest videos, charts and news
In a lawsuit filed Monday (Feb. 12) in Nashville federal court, The MLC seeks to recover the royalties that Pandora allegedly owes them and all associated late fees. The MLC is particularly concerned with “unusually low royalties per stream” reported and paid out by Pandora, starting in 2021 which they say is due to the exclusion of substantial “Service Provider Revenue and TCC for Pandora Free.” (Total Content Cost or “TCC” refers to the amount paid by streaming services to record labels for the right to stream sound recordings. The TCC and Service Provider Revenue are essential to calculating the royalties due for this blanket license).
The MLC — which is tasked with administering the blanket mechanical license for musical works, created by the Music Modernization Act — also takes issue with Pandora’s lack of retroactive royalty accounting for 2021 and 2022.
In August 2023, the royalty rate for the license administered by The MLC for the years 2018-2022 was finally determined after a five year battle in which some streaming services fought to pay lower rates for music than the Copyright Royalty Board judges initially decided on. While awaiting the final rate determination, streamers, including Pandora, paid out the previous, lower royalty rate to the music business. Once the final determination was made, it set the rates higher than what the streaming services were paying previously. As a consequence, streamers were tasked to go back and retroactively pay the proper 2018-2022 rate for music.
The MLC says it “repeatedly” reminded Pandora to report its retroactive adjustments due for 2021 and 2022, and it set a deadline for Feb. 9, 2024, which it says Pandora did not reach. (The MLC did not open its doors until 2021, and thus the retroactive adjustments for 2018-2020 are not within its purview).
Pandora has made “repeated and significant underpayments of the royalties due,” says the MLC in its lawsuit.
The news comes just weeks after the MLC and its counterpart the Digital Licensee Coordinator (DLC) entered their first-ever re-designation process, a routine five year check-up to ensure the effectiveness and efficiency of the two organizations. The MLC has also made headlines recently for issuing its first-ever audit of streaming services. The organization is also being audited itself by Bridgeport Music, which represents George Clinton and Funkadelic.
Lately, the music business has been fighting back against what it feels are unfair or unpaid licensing rates. Universal Music Group recently pulled its catalog from TikTok, citing the app’s inability to pay “fair value” for music. Last summer, SoundExchange, which collects and distributes performance royalties for the digital transmission of sound recordings, sued SiriusXM, which owns Pandora, for an alleged $150 million in unpaid royalties, and the National Music Publishers Association (NMPA) sued Twitter for $250 million for “refusing to pay songwriters and music publishers.”
Representatives for Pandora and The MLC did not respond to Billboard’s request for comment at press time.
Bridgeport Music is conducting an audit of the Mechanical Licensing Collective (The MLC), according to the Federal Register. Bridgeport, which represents the interests of George Clinton and Funkadelic, is best known for its bullish approach to copyright enforcement, once accusing more than 800 artists and labels of infringement in one lawsuit in the early 2000s. […]
The Mechanical Licensing Collective (The MLC) has announced its new Supplemental Matching Network, which consists of five companies that specialize in data matching. This is aimed to help The MLC continue to up its match rate, which is currently at 90%. (According to The MLC, the match rate is defined as the percentage of total royalties processed that were able to match to a registered work in its database.)
The first five companies included in the Supplemental Matching Network are Blokur, Jaxsta, Pex, Salt and SX Works (a SoundExchange company). The list of companies that are part of the network may grow in the future to continue to bolster The MLC’s matching process. The MLC conducted qualitative evaluations of these vendors before choosing to partner with them, including testing the products through pilot programs as well as a “Request for Information.” This is the same process that The MLC has used for other strategic vendors.
While these five vendors will all provide key data to The MLC, the companies do not specifically address the most difficult songs to match: those created by DIY, unsigned songwriters, many of whom are still unaware of The MLC.
“We conducted an extensive due diligence process to select the initial set of vendors for our Supplemental Matching Network,” says Andrew Mitchell, head of analytics & automation at The MLC. “These vendors bring complementary technologies and capabilities that can be effectively leveraged to serve our members. This network reflects our ongoing commitment to evolve in innovative ways to best achieve The MLC’s mission.”
The MLC is a non-profit organization based in Nashville. It was formed as part of the Music Modernization Act (MMA), a landmark law that created a new blanket license for musical work mechanical royalties that greatly simplified the music licensing process for digital services like Spotify, Apple Music and more. It passed in 2018.
Previously, the industry operated on a piecemeal licensing system that was complicated for the services and also the music business, leading to a pool of over $400 million in unallocated streaming royalties because the compositions’ owners couldn’t be found. (This is colloquially known in the business as “black box” money, although The MLC uses the term “historical unmatched royalties.”) The MLC was tasked to implement and administer this new blanket license and distribute the money in this stagnant royalty pool. It officially opened its doors on Jan. 1, 2021.
Learn more about the five new vendors below:
Blokur
A music data and licensing platform that works with music rights owners and online platforms to connect music and companies providing online experiences. It is built on data matching and rights identification technology to ensure accurate payment.
Jaxsta
Jaxsta is a database for music credits, sourced from the official owners of that data. This includes record labels, distributors, publishers and industry associations. It provides recording matching services for PROs, MROs, CMOs and publishers, helping identify recordings to their underlying musical works. They assist in collecting payment for mechanical, performance and synch royalties.
Pex
Pex specializes in content identification and UGC data powering copyright compliance. Pex’s music recognition technology (MRT) is designed to identify works at scale, including modified audio, live versions and cover versions, so rightsholders can capitalize on all of the content they own.
Salt
Salt is a digital royalty collection platform that helps music societies streamline their disjointed music rights and royalty systems into one global network. Salt processes usage, matches ownership and calculates distributions, providing societies with matching and royalty–processing infrastructure
SX Works Global Publisher Services
SX Works Global Publisher Services, a SoundExchange company, provides administration solutions to music publishers, self-published songwriters and organizations who own, represent and/or engage with music to manage their repertoire across the music ecosystem. SX Works’ team and technology provides partners with access to metadata designed to ensure that musical works can be accurately licensed, identified and paid for their usage.
In the Mechanical Licensing Collective’s (The MLC) third annual membership meeting, the Nashville-based non-profit organization revealed that it has distributed $1.5 billion in total royalties to date to songwriters and publishers, up by about $500 million from March.
This year marked the Music Modernization Act‘s fifth anniversary since passing into law — the landmark occasion that instructed the MLC’s formation. As part of the law, a new blanket license was created for musical work (also known as “song” or “composition”) mechanical royalties that greatly simplified music licensing for digital services like Spotify and Apple Music, among others.
The previous, piece-meal system was not only complicated for the services — it also led to a growing pool of over $400 million in streaming royalties that were unallocated because the compositions’ owners couldn’t be found. (This is colloquially known in the business as “black box” money, although the MLC uses the term “historical unmatched royalties.”) The MLC was tasked to implement and administer this new blanket license and distribute the money in this stagnant royalty pool. It officially opened its doors on Jan. 1, 2021.
According to its latest report, The MLC has completed 31 monthly royalty distributions to date, each one of them completed on time or early. Its match rate for all royalties processed through October is also up 1% since their last reporting in March, rising from 89% to 90%. According to the MLC, the match rate represented the percentage of total royalties processed that were able to match to a registered work in their database.
The MLC reported a membership of 32,000 people — 9,000 of which joined in 2023 — and touts 33 million works in its database, with data for over 3 million works added in 2023 alone. An MLC spokesperson clarified that this metric means that there were 3 million new songs this year, calculated by taking the total number of songs registered at the beginning of the year and comparing that to the total number registered at the end of September.
During the membership meeting, The MLC also announced some new board appointments. Alisa Coleman was re-elected by The MLC’s Class B Members to serve on The MLC’s Board of Directors for a second three-year term; The MLC’s Class A Members selected Troy Verges to fill the open seat as a songwriter director of the board, a position previously held by Craig Wiseman; The Class A Members selected Kevin Kadish to serve a second three-year term as a songwriter director of the board. (The Class C membership will not change in 2024.)
“We are proud of these accomplishments, particularly in reaching the milestone of distributing over $1.5 billion in royalties,” said Kris Ahrend, CEO of the MLC. “We have effectively illuminated the black box by empowering our members with several tools that enable them to take actions intended to eliminate the black box. We look forward to continuing our work to fulfill our mission of ensuring songwriters, composers, lyricists and music publishers receive their mechanical royalties from streaming & download services in the United States accurately and on time.”
As part of the five year anniversary of the MMA, Congress hosted a committee hearing in June to review its impact on the music business so far. Ahrend, along with Garrett Levin (then-president and CEO, Digital Media Association), Michael Molinar (president, Big Machine Music), Abby North (president, North Music Group), Daniel Tashian (songwriter, producer) and David Porter (songwriter, producer) all spoke as witnesses.
Publishers should get ready to welcome a royalty windfall now that the Copyright Royalty Board has printed its Phonorecord III final determination in the Federal Register — the last step to make the new rate structure official, concluding a more-than-four-year royalty row between publishers and streaming services.
The question is, how much that bonus will be.
While various industry estimates are all over the place with some even reaching another $400 million, by Billboard estimates, the just announced determined rates — finalized eight months after the 2017-2022 term expired — could yield up to another $250 million in underpaid mechanical royalties flowing from digital services to publishers and songwriters.
Now, digital services like Spotify, Amazon Music, YouTube and Pandora have six months to review and adjust past payments made for U.S. mechanicals to the new rates. Doing that will take a complicated assessment of past payments and applying them under the new finalized structure.
The ruling increases U.S. mechanical royalties each year during the five-year period using a multi-pronged formula based on choosing between either the royalties calculated using a “headline rate” tied to a percentage of the streaming service’s total revenue; or another pool that is calculated by using the lesser of either a percentage of total content cost — i.e. what’s paid to labels — or 80 cents per subscriber. Under the new finalized determination — which for the percentage of service revenue prong, is the same as the initial determination for the 2018-2022 term — the headline rate increased from 11.4% of service revenue in 2018 to 12.3% in 2019 to 13.3% in 2020 to 14.2% in 2021 and to 15.1% in 2022.
From there, performance royalties that are negotiated with and paid out to rights organizations like ASCAP and BMI are subtracted from the all-in pool, leaving just the mechanicals behind. The mechanicals are then measured against a 50-cents-per-subscriber floor, and whichever is bigger becomes the final mechanical royalty pool paid out to publishers and songwriters.
Until an appeal of the initial CRB rate determination initiated by independent songwriter George Johnson and joined by most of the big digital services sent it back to the CRB in July 2020, most of the streamers had been paying royalties under the high escalating rates from the initial Phonorecords III determination. But with the remand, in the fall of 2020, most services reverted to paying music publishing royalties using Phonorecords II rates from 2013-2017 while the appeal was sorted out. As an example, looking at just 2020 rates, that meant digital services abandoned the royalty structure that paid 13.3% of service revenue or 24.1% of total content cost and switched back to using the prior headline rate of 10.5% of service revenue and 21% of total content cost.
(This article uses rates and math associated with what’s known as the stand-alone portable streaming model — i.e., a single paid subscription — because it’s the dominant model that produces the most revenue in the U.S. marketplace. The rate formula has different percentages and parameters for other models like bundled, ad-supported, family or student tiers.)
Under the CRB judges’ final determination published in the Federal Register, the Phonorecords III royalty calculation keeps the escalating rate structures for on-demand streaming for the percentage of revenue prong in the formula but abandons an escalating rate structure for the cost-of-content prong. So, in the case of a single paid subscriber, that prong will apply 21% of total content costs to build an all-in pool to cover both mechanical and performance royalties, instead of the previously used — from the initial 2018-2022 determination announced in 2019 — annual escalating rates that in 2022 would have culminated at 26.1% of total content costs. That means in months where the total content cost became the all-in prong, the streaming service most likely overpaid publishers under the new rate structure.
In addition to eliminating an escalating rate structure for that prong, the CRB judges reapplied a ceiling for the total content bucket limiting what digital services would have to pay publishers. The initial 2018-2022 determination took out the ceiling mechanism, which would have meant that every time labels negotiated a higher rate, the music publishers and songwriters would also automatically benefit by a higher rate. Now, services reviewing their previous payments will need to measure the total cost of content bucket against the 80-cents-per-subscriber ceiling. Whichever of those two buckets is lower is then measured against the headline bucket and, this time, whichever is larger is chosen as the all-in bucket.
Reinstating the ceiling and jettisoning the escalating rate structure for the total content all-in pool could mean publishers were actually overpaid tens of millions of dollars for the 2018-2020 years, Billboard estimates based on Mechanical Licensing Collective and Harry Fox Agency royalty calculations data obtained from publishing sources. That amount, however, will be more than offset by the hundreds of millions of dollars in additional payouts that digital services will have to make for 2021 and 2022.
Billboard doesn’t have all the data necessary to calculate mechanical revenue on a month-by-month basis for each digital service, but looking at overall payments and reports to the Mechanical Licensing Collective can provide a simplified ballpark estimate on how much is owed to publishers and songwriters over the Phonorecords III five-year period.
First, let’s look at the first three years when it’s likely that services overpaid publishers and songwriters because they used the since-abandoned initial determination’s escalating percentages for the total content pool when calculating royalties. With Spotify, for example, according to data obtained by Billboard for the streamer’s Premium Individual tier, the headline rate royalty bucket won out most of the time for two of those years — 2019 and 2020 — to become the all-in bucket. Since the headline bucket rates are the same before and after the remand, it’s likely there were relatively minimal overpayments during that period. In 2018, however, Spotify’s total cost of content bucket appears to have won out all year — and that was at a higher rate of 22%, not the remanded 21%, and without a ceiling. So, in that year alone, Spotify likely overpaid by as much as $10 million on that tier alone, Billboard estimates, and is due to receive that money back from publishers and songwriters.
Based on that, and not knowing what kind of label licensing deals all digital services have, Billboard calculates — and some industry financial sources agree — that as much as $50 million in over-payments might have been paid by the digital services to publishers and songwriters overall during the 2018 through October 2020 period.
For that period, any overpayments will mostly be sorted out directly between the digital services and the publishers because the Mechanical Licensing Collective — created following the Music Modernization Act was signed in 2018 — hadn’t begun operating yet. Though, the organization will need to be involved in in recalibrating royalty payments that came from unmatched and unpaid royalties, which digital services turned over for those years at the MLC’s inception.
For 2021 and 2022, however, once the MLC began operating, the organization will be responsible for managing any royalty adjustments, once the new data and additional funding is received from the digital services.
In 2021, U.S. digital services reported $9.76 billion in estimated service revenue to the MLC, while the all-in publishing revenue totaled $1.31 billion — or 13.38% of service revenue — according to Billboard estimates based on MLC data obtained by Billboard. Taking a simplified across-the-board approach applying that year’s 14.1% headline rate against the total revenue of $9.76 billion would deliver nearly $1.39 billion in mechanical royalties — a $80 million bonus to publishers and songwriters.
For 2022, the payouts will likely be even greater. That year, digital services reported $10.78 billion in service revenue to the MLC and paid out a total of $1.45 billion in mechanical and performance royalties — or 13.5% of total revenue. Applying the 15.1% headline rate for that year produces about $1.63 billion in all-in publishing revenue — making for an extra $175.1 million in mechanical royalties.
Combined, 2021 and 2022 could yield an additional $255 million in mechanical royalties, by Billboard‘s best estimates. Depending on how much services can claw back from overpayments made during 2018 through October 2020, Billboard estimates publishers and songwriters will receive a windfall of $200 million to $250 million.
Once those payments are settled, it will be up to publishers to figure out payments to their songwriters under the new rate structure.
Beyond the windfall expected due to adjustments for over payments in 2018-2020 and the much larger underpayments in 2021-2022, Billboard estimates that the MLC holds an additional $350 million or so in unmatched or unclaimed royalties. In March of this year, the MLC reported to Billboard that it had paid out over $200 million of the $427 million pool in mechanical royalties it was handed from the years prior to when it began operating on Jan. 1, 2021. Sources say that since then, the prior 2021 unclaimed and unmatched pool has been further reduced with a total of almost $300 million now paid out. That leaves around $130 million in unclaimed royalties.
But what about 2021 and 2022? Since the MLC began, it has been matching about 90% of royalties from recordings to songs. In addition to the remaining 10% of songs that are not yet matched to recordings, there are songs building up the unpaid royalties pool because their credit claims do not add up to 100%. If a portion of a song’s credits are not claimed, that portion of the song’s royalties goes into the unclaimed and unmatched pool. Consequently, the overall payout rate the MLC is making nowadays comes out to about 84% of mechanical royalties received from digital services, according to sources, which is a considerable improvement compared to the 68–72% digital services matched and paid prior to the MLC’s launch.
In 2021, digital services paid the MLC about $675 million in mechanical royalties, Billboard estimates, and in 2022, they paid about $740 million. If 16% of the royalties for those two years are unmatched or unclaimed, that would make for another $225 million. And when 2018-2020 is added in, the MLC has a little more than $355 million in unmatched or unclaimed royalties still to be doled out to publishers and songwriters.
In addition to the publishing royalties still held by the MLC, Billboard estimates the finalized CRB rate determination will result in $50 million in overpayments to publishers for the 2018-2020 period and about $250 million in underpayments for 2021-2022. Within those totals, some of those adjustments will impact the $350 million or so unmatched and unclaimed royalties still held by the MLC.