NMPA
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The Copyright Royalty Board issued a landmark determination Tuesday (May 23) for Phonorecords III, maintaining an up to 44% raise for U.S. songwriters and publishers’ headline rate for mechanicals by the end of the period of 2018 to 2022.
The ruling increases those royalties each year during the five-year period — from 11.4% to 15.1% of service revenue by 2022 — but also affirmed key requests from streaming services during their lengthy appeal, limiting royalties based on total content cost (TCC) and reinstating a rate ceiling step in the formula. While the document is restricted from public viewing, an appendix to that determination containing the regulations at the heart of the restricted document was released to the public Wednesday (May 24).
To calculate how much is owed to songwriters and publishers, streaming services use a complex, multi-pronged formula dependent on numerous considerations. Many of these elements were revealed prior to the release of this week’s documents, so while it is noteworthy that the board is now in the last stages of finalizing the rules for Phono III after an appeal by digital services in 2019 was remanded back to the CRB, this determination cements what was previously reported. It has been described in the past as a “mixed decision” by insiders, with some stipulations favoring the interests of the music business while others favor streaming services.
Proceedings to decide how to pay songwriters and publishers for U.S. mechanicals during 2018-2022 began over five years ago. In 2018, a CRB determination set the headline rate moving upwards from 10.5% of a streamer’s revenue in 2018 to 15.1% in 2022 and increased the subscriber count calculations for discounted family and student plans to 1.5 times and 0.5 times respectively.
The 2018 determination also removed the publishing rate ceiling mechanism that prevents the publishers from automatically benefiting with higher payments when their label counterparts are able to negotiate higher rates for their master recordings. This was one of many qualms streamers had with this determination, given that many details were especially favorable to the music business. Spotify, Pandora, Google and Amazon noted then that they felt the board “acted arbitrarily and capriciously by simultaneously combining a TCC prong with an increase in the percentages of revenue prong, [or ‘headline rate’].”
Because some of the digital services hoped to regain some of the more streamer-friendly stipulations from the previous period — Phono II — Spotify, Pandora, Google and Amazon launched an appeal that was successful and resulted in a “remand” process that dragged on until now — after the 2018-2022 period was over. Apple, notably, did not participate in the appeal.
The new Phono III determination upholds the previous headline rate of up to 15.1% of streamer’s revenue by 2022, increasing each year by a full percentage point or by 0.9 of a percentage point, similar to how it was determined in 2018. This detail was revealed by the board in July 2022, as Billboard reported at the time. It also upholds the subscriber count calculations of 1.5 times for discounted family and 0.5 times for student plans, as proposed in 2019.
The appeal did, however, result in a few key wins for streaming services. It also reinstalled a rate cap of 80 cents per subscriber. Namely, the appeal lowered the total content cost calculations — which limits songwriter and publisher payouts to a percentage of what is paid to labels — from what the board determined in 2018.
While the music business was hoping for a TCC rate of 26.2%, the streaming services requested and received a range of different rates depending on the offerings, from the lesser of 20.65% of TCC up to 22% of TCC.
The U.S. mechanical royalty owed to music publishers and songwriters is calculated based on choosing between either the royalties calculated using the headline rate; or the lesser of either the percentage of TCC or 80 cents per subscriber. Whichever of the two pools is greater is selected as what’s known as the “all-in pool.” Afterward, the performance royalties are subtracted from the all-in pool, leaving just the mechanicals behind. The mechanicals are then measured against a per-subscriber pool, and whichever is bigger becomes the final mechanical royalty pool paid out to publishers and songwriters.
The most important TCC percentage rate for Phono III, the rate for standalone portable subscriptions, is 21% of TCC against 80 cents per subscriber.
Since the all-in royalty rates for this prong of the formula are determined based on the greater of the two options — either the headline rate or the lesser of the TCC pool or an 80 cents per subscriber calculation — it is feasible that the TCC rate will not be employed in certain future situations.
In the past, this prong of the formula has helped publishers get a percentage above the headline rate. For example, in 2021, when most services had reverted to the 2013-2017 term headline rate of 10.5%, the multi-pronged formula helped yield an all-in 13.4% of service revenue for publishing royalties.
Participants in the remand included the National Music Publishers’ Association, Nashville Songwriters Association International, songwriter George Johnson — who personally fought back against the streaming services on behalf of the independent songwriter in self-filed court documents — Spotify, Pandora, Google and Amazon.
Next, there is a 15-day window for rehearing motions. Then the Copyright Office will conduct a legal review for error, which could take up to 60 days. After that, the determination will be fully published, giving streaming services and the music business six months to go review and adjust past payments made for U.S. mechanicals to the new rates for 2018-2022 — a process that will likely be a financial boost for the music business.
Still, after this determination is published, the parties will have the opportunity to file a notice of appeal for 30 days.
“We are pleased the court finally has confirmed the result of Phono 3, a case which was decided in 2018. This initial remand decision upholds the 15.1% headline rate increase we fought for, however the length of time we have waited for this decision proves the Copyright Royalty Board system is woefully flawed. Now songwriters have some certainty about their rates, and we will ensure they receive the hundreds of millions of dollars that digital streaming companies owe them during this adjustment period,” said David Israelite, president/CEO of the NMPA.
“The testimonies of the three songwriter witnesses in this trial were powerful, convincing and illustrated the difficulty of songwriters earning a living in the streaming era — as well as the importance and value of the composition in the commercial music process,” said Bart Herbison, executive director of the Nashville Songwriters Association International (NSAI).
“Steve Bogard, Liz Rose and Lee Miller, all NSAI board members, were moving and informative and played a huge role in the historic increase,” Herbison added. “The process is long and difficult requiring time and preparation. We are thankful to these songwriters and to the NMPA.”
Artists, music executives, songwriters and more descended on Los Angeles’ Nightingale Plaza on Wednesday night for the National Music Publishers’ Association (NMPA) and Billboard Grammy Week Showcase.
Throughout the star-studded night, Demi Lovato, Sabrina Carpenter and Jimmie Allen each performed an intimate set, highlighting the work of a particular songwriter who helped each craft the sound of their latest studio set. Carpenter, the rising star behind Emails I Can’t Send, put a spotlight on Amy Allen, with whom she duetted on their co-written single “Vicious.”
Later in the evening, Allen performed a brand-new track titled “Small Town Anthem” as well as his 2022 hit “Down Home” before posing alongside Nashville powerhouse Liz Rose, who sits on the NMPA board of directors and was awarded song of the year during the party for co-writing “All Too Well” hand-in-hand with a certain superstar by the name of Taylor Swift back in 2012.
Lovato eventually closed out the musical festivities with back-to-back performances of “Feed” and “4 Ever 4 Me” from their 2022 album Holy Fvck — both of which were penned by Laura Veltz along with 11 more of the album’s 16 pop-punk-infused tracks.
Recording Academy CEO Harvey Mason jr. and NMPA president David Israelite were both on hand for the soiree, as well as songwriters from Makia, Nija Charles and Alex Raphael to Amber Mark and Patty Smyth. Heading into the 2023 Grammys on Sunday, Charles, Veltz and Allen are all among the inaugural pack of nominees for the first-ever award for songwriter of the year, non-classical.
Check out Billboard‘s exclusive gallery of the NMPA and Billboard Grammy Week Showcase below.
Arriving just before New Years’ Eve, on Friday (Dec. 30), the Copyright Royalty Board judges issued their ruling on streaming royalty rates for songwriters for the period of January 2023 to December 2027, upholding a settlement proposed by the National Music Publishers’ Association (NMPA), Digital Media Association (DiMA), and Nashville Songwriters’ Association International (NSAI) in late August. This ruling sets the rates for Subpart C and D of the five year period known as Phonorecords IV (or “Phono IV” for short), and it represents a compromise between the music industry and the streaming services, creating certainty around the royalties owed to songwriters for U.S. mechanicals.
According to the settlement, which the NMPA touts as the “highest rates in the history of digital streaming,” the headline rate will increase from 15.1% of revenue in 2023 to 15.2% in 2024 and then up a half a percentage point in each of the remaining three years, peaking at 15.35% in 2027, the final year of the term.
For stand-alone portable subscription offerings — like Spotify — the total content cost (TCC) component of the rate formula will be set at 26.2% of what’s paid to labels for the entire term, or $1.10 per subscriber, whichever is lower. Previously, those numbers were 21% of revenue and 80 cents per subscriber.
This means that the resultant TCC pool is measured against the total service revenue. Whichever is larger is designated the “all-in” pool, including both performance and mechanical royalties. After this is established, performance royalties are subtracted out, leaving behind solely the mechanical royalties.
Finally, the resultant mechanicals are compared against a pool, calculated by multiplying a streaming service’s total subscribers by 60 cents per person. Whichever of these two totals is bigger becomes the final mechanical royalty pool paid out to publishers and songwriters. Previously, the multiplier for the last 10 years had been set at 50 cents per subscriber.
This final ruling, reached two days before its rates are set to take effect, is a striking contrast from the lengthy proceedings to set streaming rates for Phonorecords III (2018-2022). Though that five year period is nearly over, its rates are still not finalized. In 2018, the music industry initially won the increase of the headline rate from 11.4% to 15.1% over the five year period, but the following year, Spotify, Amazon, Google and Pandora appealed, hoping to secure a lesser rate. This resulted in a legal back-and-forth that continues today, and although it is nearing its completion, it has created uncertainty surrounding what songwriters are owed for their work.
In hopes of streamlining the process and avoiding lengthy proceedings, the three settling parties worked together to propose a settlement for approval or denial by the CRB. Though other participants and interested parties outside of those who took part in the settlement were given the opportunity to explain their point-of-view during the month-long “comment period,” which ran from Nov. 7 to Dec. 7, the board explained in its ruling that its role is to either adopt or decline the settlement’s terms as presented, not to “modify” or add “requested adjustments.”
The ruling makes note of concerns provided by the 20 total commenters who weighed in on the settlement during the period, including that to some independent songwriters “the proposed rates might seem inadequate” and that several commenters prefer “alternative methods for inserting inflation adjustments.” “However,” the board states in the ruling, “the settlement is what is before the judges for consideration, not alternative rates or proposals for alternative procedures.”
In a statement Friday, NMPA president and CEO, David Israelite, celebrated the news. “Starting January 1, songwriters will enjoy the highest rates in the world and the highest rates in the history of digital streaming,” he said. “Thanks to the many songwriter advocates who worked hard to make this happen. There are still many challenges ahead to ensure that songs receive their proper value, but the future is bright.”
DiMA president and CEO, Garrett Levin, added, “We appreciate the Copyright Royalty Board for recognizing the benefits of this landmark agreement and the certainty it provides for streaming services, publishers, and songwriters alike. Thanks to the agreement, we can kick off 2023 focused on fans and continuing to grow streaming for the benefit of all stakeholders.”
Additional Reporting by Ed Christman
The Mechanical Licensing Collective held its second annual membership meeting this week in Nashville. In the presentation, the organization shared key insights into its second year of operation, including that it had distributed almost $700 million in blanket royalties to its members.
According to the meeting, the MLC, which has been operational since Jan. 1, 2021, now has 22,000 members, with 6,000 new additions in 2022 alone, and has over 17 million works registered to date, processing more than 98% of those registrations. To date, it has collected nearly $1 billion in mechanical royalties on behalf of songwriters and publishers, and rights holders have received more than $800 million in royalties, nearly $700 million of which were blanket royalties distributed directly by The MLC. About $120 million royalties were processed by The MLC but paid by digital service providers like Spotify, Apple Music, YouTube, and more, pursuant to voluntary licenses.
Since it began operations, The MLC says it has finished 19 monthly royalty distributions, all of which were completed on time or early. For the last six months in particular, the non-profit organization reported that its current match rate for all royalties processed through September’s royalty distribution is 89% and has exceeded 85% for six straight months.
“We are incredibly proud of these accomplishments,” says CEO Kris Ahrend. “Our team has worked hard to build robust data processing systems that allow us to distribute royalties accurately and on time. We have also released a suite of tools for our Members that enable them to manage their catalog data effectively and correct any missing or inaccurate data they find. While there is still more work to do, we are pleased with our progress and are deeply appreciative of all the support we have received from our Members and from the broader industry at large.”
During the meeting, the MLC also shared that Tim Cohan and Scott Cutler were elected to serve as board directors for a second three-year term, and Kara Dioguardi was elected as songwriter director of the board for a second three-year term.
The MLC was formed in response to the Music Modernization Act of 2018 to be exclusively responsible for administering blanket compulsory licenses for music compositions to streaming services.
The MLC was formed with designation from the the U.S. Register of Copyrights in response to the Music Modernization Act of 2018 to be exclusively responsible for administering blanket compulsory licenses for music compositions to streaming services. Operations began at the start of 2021, and it has been paying out royalties since April of that year, including money from Spotify, Apple Music, Pandora, and more.