Royalties
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Legendary lawyer Don Passman has likened the music biz and its transformation in the digital era to a Rubik’s Cube. It shifts so much that there have now been 10 editions of his industry bible, “All You Need to Know About the Music Business.”
The industry’s challenges, however, did not deter the lay economists at NPR’s Planet Money podcast after they heard an old song called “Inflation.” The funky, moody track with lyrics like “Inflation is in our nation… I can see a depression coming on” was written in 1975 when inflation was at levels slightly higher than today. A cassette tape of the song by Earnest Jackson‘s Sugar Daddy and the Gumbo Roux showed up in Planet Money hosts Sarah Gonzalez and Erika Beras‘ mailbox one day, and they “got a little obsessed” — so obsessed they embarked on an 8-month effort to start a record label and publish the song.
Gonzales and Beras discuss the challenges of creating a label, striking deals with different stakeholders and promoting the never-before-published song over two episodes of the podcast, this week.
Describing their reporting to Billboard, Gonzalez and Beras say that in the course of creating a contract that split revenue between the label and musicians, they came up with what Passman describes as “possibly the worst record deal I’ve ever seen, from a record company point of view.” (Passman was interviewed for the podcast.)
“We are not doing this to make money. We are really doing this because we want to explain the music industry,” Gonzalez says. “It’s just really difficult to make money in this industry, which we all knew. But it’s not until you get into it that you really understand it.”
If a typical deal gives 80% of revenues generated by a song to the record label and 20% to the musicians, Planet Money proposed giving 80% to the musician, namely singer and songwriter Earnest Jackson, and keeping 20% for their label. The hosts felt that was a fair deal given that even if the song was streamed 1 million times, they could only expect to collect around $4,000 total.
After much back-and-forth with Jackson’s old bandmates, which included Journey bassist and American Idol host Randy Jackson and others who went on to successful music careers, they landed on a deal that gives about 67% to Earnest Jackson, 15% to the bandmates and the remainder to the label and others.
Any revenue generated from the song that goes to NPR will go back into producing more shows, Gonzalez and Beras say. They say they do not plan to recoup expenses from publishing and promoting the song, which included at least $10,000 in legal fees.
Once they uploaded the track to TuneCore and started promoting their first, possibly only hit, they learned that “Inflation” had to be streamed 5,000 times in the first week for the label to be able to pay for promotion. Fortunately, the song crested 65,000 plays in its first few days, but it still has some way to go to reach 1 million plays.
“No one ever makes money on streaming,” Beras says, when asked what she learned from her reporting. “I feel like I’ve repeated that a thousand times and never understood what I said.”
“We put all of our effort behind this song and behind Earnest Jackson and are going all in,” Beras says.
Next, they plan to make it a ringtone — which earns a bit more than streams — and they are trying to land it in a Netflix documentary.
Since launching their label last week, Planet Money has received two more submissions from musicians, according to Beras. For now, they are focused on “Inflation” and have no aspirations to “become music moguls,” Beras jokes.
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.
Streaming platform Slacker owes SoundExchange nearly $10 million in unpaid performance royalties, according to a recent ruling by a federal judge, issued after settlement talks between the two broke down.
SoundExchange, which collects streaming royalties for sound recordings, sued Slacker and parent company LiveOne in June, claiming they had refused to pay millions over a five-year period. As recently as September, court documents indicated the two sides were having “meaningful settlement negotiations.”
But last week, SoundExchange played an unusual legal trump card: A pre-signed consent judgment, inked by execs at Slacker back in 2020 as part of a previous effort to get the streamer to pay its royalty bill. Under the terms of that earlier deal, if Slacker ever defaulted again, its executives agreed that a judge should enter a judgment against the company for the full sum owed.
On Thursday, Judge André Birotte Jr. did exactly that – ordering Slacker to pay $9,765,396 in unpaid royalties and late fees. He also permanently barred the company from using the so-called statutory license, a federal provision that makes copyright licenses for recorded music automatically available to internet radio companies like Slacker and Pandora at a fixed price.
Without access to the statutory license, Slacker will presumably need to negotiate direct licenses from rights holders for sound recordings, similar to what on-demand streaming services like Spotify must do.
A spokesman for Slacker and LiveOne did not return a request for comment on Tuesday. In a statement to Billboard, SoundExchange president and CEO Michael Huppe said the lawsuit demonstrated that the group “takes our role in defending fair compensation for creators seriously.”
“Despite a prior agreement, multiple promises, and repeated negotiations, Slacker and LiveOne failed to pay properly for the music – on which the companies built their business model,” Huppe said. “It is regrettable that this step became necessary, but we will not back down when it comes to protecting creators and ensuring they are well-represented and properly paid under the law.”
We Can[‘t] Work It Out
In its lawsuit, SoundExchange claimed Slacker stopped paying recording royalties way back in 2017, and that a subsequent audit revealed it had been underpaying for years before that. In 2020, the two sides entered into the repayment plan, which gave Slacker two years to pay its debts. But in the June lawsuit, the SoundExchange claimed that Slacker quickly failed to live up to the plan.
“By refusing to pay royalties for the use of protected sound recordings, Slacker and LiveOne have directly harmed creators over the years,” Huppe said at the time. “Today, SoundExchange is taking a stand through necessary legal action to protect the value of music and ensure creators are compensated fairly for their work.”
Though SoundExchange clearly had the earlier agreement as leverage, it appears the two sides tried again to work out a settlement. In early September, attorneys for Slacker asked for more time, saying that the two sides were engaged in “ongoing meaningful settlement negotiations with the expectation that a settlement would be reached.” But they said such talks had not been easy.
“The negotiations have proven to be complicated. There have been a number of offers, back and forth, and numerous emails, calls and discussions,” wrote Jeffrey A. Katz, Slacker’s outside counsel. “A final resolution appears promising but is not guaranteed. Defendants would like to remain focused on their pursuit of a negotiated resolution.”