Radio
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In its first legal response to a SoundExchange lawsuit alleging underpayment of $150 million in artist royalties, SiriusXM claimed in a court filing Friday (Sept. 22) that SoundExchange’s numbers rely on a “so-called audit” that was a “flawed and biased examination” and insists the satellite-radio giant “properly calculated its royalty payments to SoundExchange in all material respects.”
The filing, which demands a change of U.S. court venue from Virginia to New York or Washington, D.C., also bashes the royalty collection and distribution service for trying to “justify its existence, lofty executive salaries and luxurious operating style through repeated litigation against its biggest contributor.”
In a phone interview before the filing, George White, SiriusXM’s senior vp of music licensing and royalties, says the SoundExchange lawsuit, filed in August, caught his company by surprise. “We were discussing settlement with them,” adds White, a former longtime major-label executive. “We really took some time to review it.”
White says the lawsuit comes down to a difference of opinion over SoundExchange’s “method of calculating their deduction.” He argues that SiriusXM has paid SoundExchange $5 billion in performance royalties for sound recordings over the last 10 years, and contributed “the vast majority” of the $805 million the service collected last year. “The rhetoric in the suit itself and the press release around the suit seems really unfair and wholly inappropriate,” White says. “In fact, we want to make every effort to ensure everyone is compensated fairly.”
SoundExchange, which collects royalties from webcasters and non-terrestrial radio services on behalf of artists and labels, argued in its Aug. 16 lawsuit that Sirius XM was bundling its satellite radio and streaming service, mixing the revenue in order to improperly reduce its royalty bill. The U.S. government mandates different royalty rates for satellite-transmitted services (like SiriusXM’s traditional satellite radio) and webcasting under so-called statutory licenses, but SoundExchange’s lawsuit declared that “Sirius XM has unjustly enriched itself to the detriment of recording artists and copyright owners upon whose music Sirius XM has built its business.”
In its response, SiriusXM accused SoundExchange of “misguided allegations” and argued a “proper audit” would conclude the company “properly calculated its royalty payments to SoundExchange.” The company also criticized SoundExchange for taking advantage of what it called the Virginia court’s “rocket docket,” which, regional lawyers have said, results in fast-moving cases, little time for discovery and quick resolution.
“We’re very hopeful that we can proceed down the lines of having a productive settlement discussion,” White says. “I would far rather that we had a close relationship with SoundExchange that was about working to grow SiriusXM’s contributions to SoundExchange.”
SoundExchange didn’t immediately respond to Billboard‘s request for comment.
Cody Alan is joining SiriusXM’s The Highway with a new daily show set to launch Monday (Sept. 11).
The new show, titled Highway Mornings with Cody Alan & Macie Banks, will air weekdays from 5 a.m. to 12 p.m. ET on SiriusXM’s The Highway (channel 56), as well as on the SXM app. Alan will also continue to host CMT’s flagship weekly music TV show Hot 20 Countdown.
Highway Mornings with Cody Alan & Macie Banks will offer the latest in country music, pop culture and entertainment, with Alan and Banks interviewing celebrity guests, chatting with listeners and sharing their own personal stories. The new show follows the exit of former The Highway morning show host Storme Warren, who left The Highway earlier this year to join Garth Brooks’s The Big 615 country station with TuneIn.
“Cody is a well-respected and long-time member of the Country music community and we are thrilled to welcome him to The Highway family,” said SiriusXM senior vp/GM of music programming Steve Blatter in a statement. “Cody’s deep roots and connections in country music will keep our listeners’ fingers on the pulse of Nashville every morning as they tune in to Cody and Macie.”
Alan added, “I’m thrilled to be joining the SiriusXM family on The Highway. It will be a fresh start in mornings, with Macie Banks returning soon to join me. I plan to lean into my love for country music and my years of strong relationships in Nashville. The new show will be friendly and fun, and continue with an emphasis on artists and authenticity. After all, real life makes the best country songs, and from my experience, the best on air moments too! Also, I’m very excited to be part of The Highway’s rich tradition of passionately introducing fans to country music’s next generation. I can’t wait to get going!”
During his career, Alan has been named the 2021 national on-air personality of the year by the Country Music Association and has twice been named the Academy of Country Music’s personality of the year. After gigs in South Carolina, Georgia and Florida, Alan made it to the major leagues at age 23 when he landed at KPLX in Dallas-Fort Worth, Texas. Alan was also a nine-time recipient of the country music director of the year award during his tenure in Dallas.
In 2017, Cody made national headlines after coming out as gay. He partners with GLAAD to host the annual Concert for Love and Acceptance and was honored with the 2022 visibility award from the Human Rights Campaign for his efforts in the LGBTQ+ community. The multi-faceted Alan also released the book Hear’s The Thing in 2021, writing about his on-air adventures, his coming out story and the lessons he’s learned from listening to others.
Country music is having a moment; whether it’s a short blip or an enduring bonanza remains to be seen.
In a Country Radio Broadcasters CRS360 webinar, “Moment Us: Leveraging Country Music’s Growth,” executives from three different industry sectors — radio, streaming and touring — grappled with the genre’s precedent-setting achievements, which raise serious questions about why country is popular and how to harness the current momentum.
Jason Aldean’s “Try That in a Small Town,” Morgan Wallen’s “Last Night” and Luke Combs’ “Fast Car” gave country the top three titles on the all-genre Billboard Hot 100 dated Aug. 5 for the first time in history. Oliver Anthony Music’s “Rich Men North of Richmond” joined Wallen and Combs to repeat the feat on the Aug. 26 chart.
There is no single reason for the trend — panelists cited the genre’s sonic expansion, its increasing acceptance among younger fans, better data that allows gatekeepers to respond quickly to consumers’ habits and streaming’s blurring of stylistic lines.
Fans and country platforms “seem to be embracing the fringes of the format a little bit more now, whether it’s sort of the Americana country that Zach Bryan represents or the rock-leaning country that a Jelly Roll represents,” CAA Nashville co-head Marc Dennis said. “Artists like that — that you wouldn’t necessarily have called mainstream country five, six years ago — those artists are bringing fans into the format.”
As country’s face is changing in the marketplace, some of the accepted norms are changing, too. Where country devotees were once reliable followers of all artists in the genre, individual acts increasingly have specific fan bases, and Dennis said he is no longer concerned about keeping 30 days’ distance between competing country concerts in the same market, though he does try to keep separation between on-sale dates for different shows. And with radio listeners tuning in stations for shorter spans, programmers are less concerned about the gap between repeat spins from the same act.
“If the average tune-in is 11 to 15 minutes, the idea that we’re going to artificially say, ‘Well, we’re only going to play X artist every hour and 15 minutes,’ that seems very shortsighted,” WIRK West Palm Beach, Fla., operations manager/PD Bruce Logan said.
Artists are bubbling up from more sources — including TikTok, YouTube and a variety of playlists — and they also have more corporate opportunities, with fashion and food brands courting their endorsements alongside the prototypical trucks, boots and beers.
But the popularity is accompanied by concerns. Aldean’s “Small Town” video and a Wallen incident from 2021 put a spotlight on racism. Far-right media and conspiracy theorists quickly championed Anthony, though he has claimed political neutrality. Executives have privately lamented the possibility that country’s short-term popularity may feed long-term negative perceptions about it at a time when the industry is trying to diversify.
“We’re going to see more of these hot-button moments in country music,” Spotify Nashville head of editorial Rachel Whitney said. “There’s a lot of questionable history in the genre, and it’s really important that we all kind of do our homework, in a way, and make sure that what we do going forward is creating a welcoming space.”
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Garth Brooks, who launched his own Sevens Radio Network through streaming platform TuneIn in June, announced the second station under his umbrella today: Tailgate Radio, which will blend music and sports.
Hosted by sports commentator and producer Maria Taylor, Tailgate Radio’s launch is timed to the start of the 2023 college football season. While the station will not air the games — TuneIn provides access to live play-by-play from more than 100 Division 1 colleges and universities on other channels — Tailgate Radio will provide pre- and post-game entertainment for sports fans.
“This is one of those ideas someone says, ‘Why didn’t we do this a long time ago?’” Brooks said in a statement. “This combines everyone’s passion for sports and music. It also allows you to enjoy your tailgate, barbeque or poolside party without doing the work. There’s so much music on this channel, Tailgate Radio will be everyone’s favorite.”
Tailgate Radio, which will air 24/7, is kicking off with specific programming including Tailgate Top 20 with Maria, a weekly countdown hosted by Taylor that will highlight the 20 biggest songs across all genres from a specific year as well as tying them in with the biggest sports stories from that year. Elsewhere, Block Party will be a Saturday night four-hour mixshow featuring contemporary music from artists ranging from Luke Combs to Beyonce to Eminem. And Tailgate Takeover will feature celebrities, artists and athletes as guest hosts, allowing them to talk about the music and playlists that help them set their favorite vibe; Brooks will host the first edition.
Courtesy Photo
Taylor and Brooks previously partnered on her middle school mentoring program for girls, PowHER, which linked with his foundation, Teammates for Kids. “Working closely with Garth and his foundation as we created the PowHER program has been nothing short of amazing,” Taylor said in a statement. “And now, we are embarking on Garth’s extraordinary vision to connect sports and music fans with Tailgate. It’s such an honor to be chosen by greatness to be a partner in the radio space.”
In June, Brooks bowed Sevens Radio with country music channel The Big 615. At the time, he noted that Sevens Radio would, appropriately enough, eventually offer a suite of seven stations. At the press conference for The Big 615, Brooks also stressed the appeal of TuneIn’s international aspect, saying the global reach was his “favorite thing” because it allowed the station to present undiluted country music: “If we go across the water, they ask you immediately to take the [pedal] steel and fiddles off your country music. Ain’t going to happen here.”
TuneIn claims more than 75 million monthly listeners across more than 100,000 stations. Its sports partners include the NFL International, MLB, NHL, NASCAR (Motor Racing Network & Performance Racing Network), Formula 1, IndyCar Radio, US Open, talkSPORT, ESPN Radio and college sports partners (Westwood One, Learfield, Playfly Sports, JMI Sports, Van Wagner and Clemson Athletic Properties).
On Aug. 14, days after Oliver Anthony performed before thousands at the Morris Farm Market in Currituck County, N.C., Mike “Moose” Smith did something he hadn’t done in 40 years. The program director for 97.3 The Eagle, in nearby Norfolk, Va., aired the unknown singer-songwriter’s viral smash — “Rich Men North of Richmond” — once every hour. “That was called the Special Oliver Anthony Rotation,” Smith says. “My general manager called on Sunday and said, ‘What do you know about this guy?’ My music director was on vacation. I hand-scheduled it.”
“Rich Men,” a twangy country-folk song recorded on a single microphone somewhere on Anthony’s land in Farmville, Va., rails against high taxes and “the obese milkin’ welfare” and has become a conservative anthem, championed by Joe Rogan, Breitbart and country star John Rich. In the week of Aug. 17, it streamed 17.5 million times and sold 147,000 downloads, according to Luminate. Based on downloads and streaming alone, the song debuted at No. 1 on Billboard‘s all-genre Hot 100 chart. Some country radio stations have picked “Rich Men,” giving it 553,000 airplay audience impressions despite zero promotion the week of Aug. 17. From Aug. 18 to Aug. 21. If the radio-playlist trend continues, the track should make its debut on Billboard’s Sept. 2 Country Airplay chart.
Few radio stations, including 97.3 The Eagle, add new artists to their playlists — especially those with no label promoting it– but listeners were calling in to request Oliver’s track. “It makes it hard to ignore,” Smith says. “If our audience wants it, it’s our job to give it to them.”
Not every station has succumbed to the viral hype. The song has a rickety feel — not exactly a seamless transition from the slick Morgan Wallen and Luke Combs hits atop Billboard‘s Country Airplay chart. And “Rich Men” has been politically divisive, with progressive pundits decrying its conservative populism. Bruce Logan, operations manager for Hubbard Radio in West Palm Beach, Fla., hasn’t added it to his stations’ playlists. “We are talking about how we should approach it. It’s unusual,” he says. “In theme, it is certainly working man/woman blue-collar, which the format has a long history with. Sonically, it is closer to bluegrass than mainstream country.”
In San Jose, Calif., streaming-only country station KRTY hasn’t picked it up, either, because the track is unfamiliar and Anthony has no experience as a recording or touring artist. The station seldom jumps on hyped-up hits from American Idol or The Voice, according to GM Nate Deaton, its general manager.
“From a radio standpoint, that kind of thing is not really what we do best. I’ve never been big on the following-the-trend thing,” Deaton says. “We’ve always played songs we’ve believed in, too, and I’m not necessarily sure I believe in this song. I’m not necessarily sure it’s better than what I’m playing. Whose place do I take in the playlist?”
But some stations, big and small, have been comfortable with Anthony’s organic, do-it-yourself stardom, adding “Rich Men” to playlists within weeks of its release. Several stations owned by radio chain Audacy, including KMLE Country 107.9 in Phoenix and 100.7 The Wolf in Seattle, have given the track more than 25 spins apiece since it first aired Aug. 14. Stations owned by iHeartMedia and Cumulus have jumped on it less frequently, according to Mediabase. (An Audacy rep declined comment; iHeart’s rep did not respond to a request.)
Although he did not respond to follow-up questions about adding the song to stations’ playlists, Charlie Cook, vp country for broadcast chain Cumulus, said in a statement: “Americans are looking for answers to problems they encounter every day. While this song doesn’t offer solutions to those problems, it does verbalize the issues and has given listeners an opportunity to hear about their frustrations in a collective situation. Most of them can say, yeah, that’s how I feel, and they become part of a bigger movement to help them have a voice.” Just a few Cumulus stations have added “Rich Men,” beginning with New Country 101.Five in Atlanta, which spun it six times from Aug. 18 to Aug. 21.
In Santa Maria, Calif., Sunny 102.5 quickly added “Rich Men” on a “light” rotation of 20 spins per week — shortly after airing Jason Aldean‘s just-as-hyped-and-divisive track “Try That In a Small Town” (and, in the early 2000s, music by The Chicks after right-wing listeners burned the country trio’s CDs for criticizing President Bush and the Iraq War).
“If you don’t play it, you’re censoring the airwaves, I say,” says Jay Turner, program director for the station owned by smaller California-and-Southwest chain American General Media. “We’ve gotten very little, if any, pushback on either Jason Aldean or ‘Rich Men.’ None at all. I can’t see anybody pushing back on ‘Rich Men,’ because it’s real. It’s $5.25 to buy gas in Santa Barbara.
“My guess is it’s going to flash fast and it’s going to end fast. Stations aren’t going to be playing it forever. It’s not going to be in malls,” Turner continues. “It just sounds like hillbilly hick stuff. You put it up against a Maren Morris record, or a pop record, it sounds like you’ve gone back 30 years in time. But it’s a freaking great song. He’s pouring his heart out.”
While the Radio Music Licensing Committee awaits an appeals court decision in its so-far unsuccessful attempt to combine rate court proceedings with ASCAP and BMI under a single judge, the trade group has filed federal petitions to begin the processes separately in the Southern District of New York.
Usually, such rate proceedings petitions are initiated after negotiations between the performance rights organizations and the RMLC prove fruitless. Under these petitions, the PROs will each make the case for what rate it thinks their songwriters and publishers are entitled to receive when their songs are played on the radio. This time out, for the period of 2022-2026, the RMLC is seeking to maintain the same rates it had under the prior agreement which covered 2017-2021.
In July 2022, the RMLC tried to get ASCAP and BMI combined into a single rate proceeding, thus showing its hand that it felt rate negotiations had failed. For decades, each PRO had its own separate rate proceeding, but about seven or eight years ago, the RMLC began a new rate court strategy of trying to assign market share to the four U.S. PROs — ASCAP, BMI, SESAC and Global Music Rights — in attempt to keep the rates in parity with market share, irrespective of each PRO’s song catalog. In filing its petition to consolidate the rate proceedings to the Southern District of New York, which oversees both rate proceedings and the ASCAP and BMI consent decrees, the RMLC said the act was justified by the Music Modernization Act of 2018 that changed how the the Southern District assigns the rate court proceeding.
The step to combine the rate proceedings into one was seen by some music industry executives as a further attempt to pursue that rate strategy. Having a single judge, instead of bifurcated rate court proceedings, could benefit the RMLC because it would likely pit BMI and ASCAP against each other, vying for a higher rate than the other with both PROs arguing over market share.
But in May this year, Southern District Court Judge Stanton ruled against the RMLC’s consolidation petition so the radio trade group subsequently appealed that decision. The Second District Appeals Court has yet to issue a ruling on the RMLC motion, but in the meantime, the RMLC is getting the ball rolling with the rate court by filing amended petitions on BMI on Aug. 10 and on ASCAP on Tuesday.
Despite filing petitions for the two rate court proceedings, the RMLC petition for the ASCAP rate court proceeding says that if the Second Circuit Appeals Court ultimately agrees with the RMLC position to combine the two rate court proceedings into one, “it reserves all rights at the appropriate time” to pursue a unitary action against ASCAP and BMI.
The ASCAP rate proceeding covers the current five-year term which began on Jan. 1, 2022. In the prior term (2017-2021), RMLC said it paid a combined 3.51% of net revenue as a royalty pool for the two PROs, with ASCAP getting 1.73% of that based on market share claims it made at the time — which the RMLC now says was “a representation that turned out to be false.” Meanwhile, BMI received 1.78% of radio stations’ net revenue.
Nevertheless, in May 2022, according to the petition, the RMLC asked ASCAP and BMI if they would be willing to roll forward the combined 3.51% of net revenue royalty pool, provided that ASCAP and BMI would agree on a mechanism for assessing each of their market shares.
Although the rate level would be the same, the RMLC implies it is actually an increase because the combined ASCAP and BMI share of total performances on RMLC stations likely has diminished since when the prior agreements began, the RMLC argues in its petition.
Meanwhile, it looks like BMI is requesting a rate increase from 1.78% to 2.95%, according to what the RMLC states in the BMI petition; while the RMLC ASCAP petition doesn’t disclose the rate ASCAP is seeking.
The RMLC didn’t immediately respond to a request for comment.
“The RMLC would rather continue to waste time and money on expensive litigation than simply paying songwriters a fair royalty for the use of their music,” ASCAP CEO Elizabeth Matthews said in a statement. “It’s not that complicated. Simply treat music creators who support your successful and profitable businesses with dignity and respect and everyone wins.”
While the PROs and the RMLC wait for the rate court proceedings to make a determination, all parties have agreed to an interim rate that allows radio to continue to play music without copyright infringement.
SoundExchange is suing SiriusXM over allegations that the satellite radio giant has been “gaming the system” in order to withhold more than $150 million in royalties owed to artists.
In a lawsuit filed Wednesday in Virginia federal court, the royalties group claimed that SiriusXM has been using bookmaking trickery – namely, manipulating how it bundles satellite services with web streaming services – as part of a scheme to “grossly underpay the royalties it owes.”
“Through its contrived and improper apportionment, Sirius XM has engineered a windfall for itself and deprived artists of the important compensation to which they are legally entitled and desperately need,” wrote lawyers for SoundExchange in the complaint.
The allegations concern the royalties paid under so-called statutory licenses – government mandates that automatically give certain streaming services the ability to broadcast songs for a set price. Crucially, that system sets different rates for revenue from satellite broadcasts (like SiriusXM’s traditional satellite radio) versus that from so-called webcasting services, which are transmitted through the internet.
In Wednesday’s complaint, SoundExchange says SiriusXM has intentionally bundled the two products together as a single offering in recent years, allowing the company to mix the revenue in order to improperly lower its royalty bill.
“Sirius XM is gaming the system: to grossly underpay the royalties it owes, Sirius XM has unreasonably characterized revenue from its bundled product as ‘webcasting revenue’ that in actuality is “[satellite] revenue’,” SoundExchange wrote. “Sirius XM’s revenue apportionment is beyond the pale, and harms music creators.”
According to SoundExchange, that maneuver has allowed SiriusXM to shortchange artists to the tune of $150 million. The company has also allegedly refused to comply with an indepdent audit that found millions in such shortfalls.
“Sirius XM has not paid its bills,” SoundExchange wrote. “By purporting to comply with the statutory license without paying what it owes under the license, Sirius XM has unjustly enriched itself to the detriment of recording artists and copyright owners upon whose music Sirius XM has built its business.”
A representative for SiriusXM did not immediately return a request for comment.
In a statement, SoundExchange CEO Michael Huppe said the group had only resorted to litigation as a last resort. “In recent years we have viewed SiriusXM as a willingly lawful and compliant company that shares our desire for a robust streaming marketplace. But SiriusXM has and continues to wrongfully exploit the rules to significantly underpay the satellite royalties that it owes.”
Radio companies, suffering from sluggish radio advertising and underwhelming stock prices, might be starting to see the light. B Riley Securities analyst Daniel Day expects national advertising to pick up in the second half of 2023. That hint of optimism, along with Cumulus Media’s better-than-expected second-quarter earnings released Friday, sent radio stock prices soaring over the last few days.
Cumulus’s net revenue of $210.1 million was down 11% year over year and 25% below the same quarter in pre-pandemic 2019, the company announced Friday. Earnings before interest, taxes, depreciation and amortization (EBITDA) of $30.7 million was down 32.6% from the prior-year period, but was helped by wringing out $12 million of cost reductions. Revenue was in line with the company’s expectations while EBITDA exceeded expectations. Adjusted EBTIDA of $28.7 million was 32% above the estimate of Noble Capital Markets analysts.
That was good news for some investors. Shares of Cumulus climbed 14.5% to $5.54 on Friday and rose another 14.4% to $6.34 on Monday. Even after Cumulus gave back some of those gains on Tuesday (Aug. 1) and dropped 11.7% to $5.60, its share price was more than 2.5 times above the 52-week low of $2.57 from May 9. On Monday, B Riley upped its Cumulus price target from $10 to $11 — implying 96% upside from Tuesday’s closing price — and maintained its “buy” rating.
The trends could portend good news for other radio companies. On Monday, shares of iHeartMedia rose 12.4% to $4.73. Even after dropping 3.2% to $4.58 on Tuesday, iHeartMedia’s stock stood at more than double its 52-week low of $2.21 set on May 26. iHeartMedia will report second-quarter earnings on Aug. 8.
For Cumulus, the quarter was all about optimizing what it can control while mitigating the downside of what it cannot control, said president and CEO Mary Lerner during Friday’s earnings call. “This proven skill set is serving us well as we make the best of the current tough ad environment,” said Lerner.
Cumulus cut $5 million of fixed costs, repurchased $5.7 million of its common stock in the second quarter, bringing the total repurchases to $39 million, and retired about $32 million of bonds at an average discount of 26%. It also announced the sale of WDRQ-FM for $10 million that is expected to close this quarter. Digital revenue of $37.5 million was down just 0.7% from the prior-year period. Cumulus’ digital marketing services businesses were up 21% year over year while its podcast audience was up 19%.
What Cumulus cannot control is the willingness of brands to buy advertising. A weak national advertising environment since late 2022 “remained the main factor driving a decline in total revenue,” said Frank Lopez-Balboa, Cumulus executive vp, treasurer and chief financial officer. Local spot advertising revenue — which accounts for 80% of Cumulus’s total stock revenue — was down 7% while soft national advertising caused total broadcast radio revenue to fall 16.5%.
The U.S. Court of Appeals for the District of Columbia Circuit ruled last week to uphold the Copyright Royalty Board’s Web V rate determination, published in the Federal Register on Oc. 27, 2021.
That determination, which impacts non-interactive, programmed plays on digital radio like Pandora and iHeartRadio, set inflation-adjusted rates at $.0026 per paid subscription stream, up from $0.0024 cents. For ad-supported streams, the CRB set a rate of $0.0021, up from $0.0018 per play. (On-demand streams from services like Spotify and Apple are not included in this determination.)
These payments from digital radio, webcasters and simulcasters are made to SoundExchange, which in turn distributes royalties to labels and recording artists. Some labels have direct deals that get them paid directly from the large radio networks — in which case they turn over the artist’s share to SoundExchange, for distribution to artists.
The Web V rate determination covers the five-year term of 2021 through 2025, but since it includes inflation-adjusted rates, on Dec. 1, 2021, the 2021 rates set in the determination were adjusted to higher rates of $0.0028 per paid subscription stream and $0.0022 per ad-supported stream.
Around the same time as the adjusted rates were set, various participants in the Web V proceedings appealed certain aspects of the initial rate determination. They included the National Association of Broadcasters (NAB), which sought lower rates than the determination; and SoundExchange, which sought higher rates for commercial non-subscription, ad-supported services than the determination; and the National Religious Broadcasters Music License Committee. The Appeals Court ruling rejected their arguments.
In addition to upholding the per-play rates, the Appeals Court also reaffirmed the doubling of the minimum rate to $1,000 per station, up from $500 per station annually, with a maximum aggregate minimum fee of $100,000 for large commercial radio broadcasters with more than 100 stations.
In a statement, SoundExchange said: “We appreciate the court’s thoughtful attention to our appeal regarding royalty rate-setting methodology, and we are pleased that the appeals court rejected broadcasters’ efforts to reduce royalty rates at the expense of hard-working artists and creators and preserved the status quo for webcasting rates through 2025.”
This ruling confirms that broadcasters compete with audio music services for listeners and, therefore, should continue to pay royalty rates on a level playing field. The appeals court determined that the broadcasters failed to adequately give reason why artists and rights owners should subsidize the broadcasting industry even more than they already do. After all, broadcasters still inexplicably get a free pass for the use of sound recordings on their AM/FM transmissions.
Meanwhile, NAB said in a statement to Radio Ink and confirmed to Billboard that it was pleased that “the Court rejected SoundExchange’s aggressive and deeply flawed arguments in favor of higher digital royalty fees and acknowledged that broadcasters could pay a lower rate for simulcasts in the future.”
(The reference to possible lower rates for simulcasts in the future comes from the Appeals Court ruling “that future records may warrant new rate category distinctions” between simulcasting and other types of commercial webcasting.)
The NAB statement continued, “We will continue advocating for reasonable streaming rates that allow broadcasters to expand their digital offerings and stream music, which will benefit performing artists, songwriters and our tens of millions of listeners.”
When Dolly Parton debuted her latest single, “World on Fire,” during the Academy of Country Music Awards on May 11, Nate Smith was aghast.
RCA Nashville was set to release his single with the same name to radio four days later.
“What are the odds of that?” Smith asks. “That’s crazy to me.”
The odds of two different songs with the same title being worked to the marketplace at the same time are not that large, though the likelihood that a title has been used before is pretty good:
• Chris Stapleton’s “White Horse,” the top debut on the current Country Airplay chart, uses the same two-word moniker as a 2008 Taylor Swift single and a 1984 pop single by Laid Back.
• Gabby Barrett’s “Glory Days” shares its name with a Bruce Springsteen classic and a recent Chapel Hart single.
• Parker McCollum’s “Burn It Down” mirrors the title of a 2012 Linkin Park single that topped Hot Rock & Alternative Songs. Jason Aldean also launched a Burn It Down Tour behind the similarly titled “Burnin’ It Down,” and back in the ’90s, Marty Stuart’s “Burn Me Down” and Clint Black’s “Burn One Down” were fairly close.
• Meanwhile, the July 26 death of Sinéad O’Connor, best known for “Nothing Compares 2 U,” occurred just nine days after the release of Mickey Guyton’s properly spelled “Nothing Compares to You,” featuring Kane Brown.
Using the same title isn’t a sin, as “Glory Days” co-writer Seth Mosley discovered early in his career. His first hit was The Newsboys’ “Born Again,” which peaked at No. 2 on the Christian chart in 2010. It came a year after Third Day reached No. 3 with its own take on “Born Again.”
“You can write the same title five different ways,” says “Glory Days” co-writer Emily Weisband.
Actually, five is a low number. There are nearly 300 songs with the name “Glory Days” in the Songview database, an online catalog of titles represented by performing rights agencies BMI and/or ASCAP. The index also features over 330 songs named “World on Fire,” more than 650 called “Burn It Down” and more than 50 titled “Nothing Compares to You.” Morgan Wallen’s “Last Night,” in fact, is one of at least 1,000 songs with that moniker.
“I guess if everybody else has been trying to do it, maybe we were on to something,” “Burn It Down” co-writer Hillary Lindsey reasons.
Whether or not a title has been written before hinges in great part on the familiarity of the phrase. Songwriters tend to lean toward songs that feature common language. Thus, the everyday phrase “Change of Heart” -— associated with hits by The Judds, Cyndi Lauper, Tom Petty and Eric Carmen — appears nearly 800 times in Songview, while the Joe Nichols semi-novelty “Tequila Makes Her Clothes Fall Off” is the only song with that title.
The age of existing hits with a particular title can influence whether a phrase gets reused. Springsteen’s version of “Glory Days,” for example, was a hit in 1985, a full 15 years before Barrett was born. When the title came up in the writing room, she didn’t know about the Boss’ version, and nobody told her about it, either. The live-in-the-moment plot she and her co-writers developed is distinctly different from Springsteen’s nostalgic take on it.
Similarly, the writers on Carrie Underwood’s “Dirty Laundry” had little or no awareness of Don Henley’s 1982 anti-media take on that title. And Old Dominion’s current “Memory Lane,” a title that appears more than 900 times in the Songview database, has not been a top 20 title since Paul Whiteman’s Pennsylvanians took it to No. 1 in 1924. And Brothers Osborne’s first top 10 single, 2015’s “Stay a Little Longer,” came 70 years after Bob Wills & His Texas Playboys recorded a Western swing hit with the same name.
“Shit, if you know the Bob Wills song, then more power to you,” T.J. Osborne said at the time.
Still, standard titles — such as “Georgia on My Mind,” “I Will Always Love You” or “Your Cheatin’ Heart” — are mostly out of bounds.
“There are some that when you hear it, you would never touch it or you look like assholes, like ‘Yesterday,’ ” says “Burn It Down” co-writer Liz Rose.
Titles and basic ideas cannot be copyrighted — it would be unrealistic to ask writers to avoid “Without You” (a hit for Badfinger, Keith Urban and Dixie Chicks) as a title, or to not address a widely familiar topic such as heartbreak, simply because those subjects had been broached before.
It would also be difficult to referee disputes when more than one version of a title emerges at the same time. When “Day Drinking,” for example, became a hit for Little Big Town in 2014, it was one of several songs with that title that had circulated around Music Row simultaneously. That sometimes happens when specific themes become popular and multiple songwriters attempt to capitalize on the trend. It could, however, derive from something deeper.
“Some people say that being creative, it’s just out there in the universe, and you have to just be open to it to let it flow through you,” Lindsey notes. “I believe in all that stuff. I haven’t dove all the way into all that stuff, but I believe it.”
That title, “I Believe It,” has already been written more than 150 times, and it has yet to become a hit.
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