Recently, recording artist Taylor Swift made a business decision. She chose not to allow the music-streaming service Spotify to use songs from her new album, “1989.” Taylor has that right, as do other American recording artists and their record labels. Songwriters don’t.
Rules established by Congress in 1909 created what is called a “compulsory license” for songwriters who must allow interactive digital streaming services use of their creations. American Society of Composers, Authors and Publishers and Broadcast Music, Inc. consent decrees from World War II contain similar rules for streaming music. So, songwriters have no authority in the music marketplace to deny use of songs even if the royalty rates are ridiculously low. Services such as Spotify pay micro-pennies to songwriters and composers that can amount to just a few dollars for millions of plays. Such dismal royalty earnings have resulted in the profession of American songwriter headed toward extinction.
During a hearing in June 2014 on music licensing before the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, Rep. Judy Chu, D-Calif., queried songwriter witness Lee Thomas Miller, president of the Nashville Songwriters Association. “Let’s assume the status quo prevails. What does the world look like in five years for songwriters?” Chu asked.
“We’ve lost 80 to 90 percent of [America’s] songwriters over the last 12 years. Five years is a long time, so I don’t know. I fear what that would mean. If we continue to move toward more of a streaming model it seems catastrophic. I hope Congress will take all of the facts into consideration and understand that an American profession is in a lot of trouble,” Miller responded.
The Songwriter Equity Act takes a step in the right direction by allowing the Copyright Royalty Board and federal rate court judges who respectively set sales and performance royalty rates to consider marketplace evidence they cannot presently utilize to determine more appropriate payments for songwriters. The legislation, introduced by Reps. Doug Collins, R-Ga., and Hakeem Jeffries, D-N.Y., in the House and Republican Sens. Lamar Alexander and Bob Corker of Tennessee in the Senate, was one focus of the music licensing hearings earlier this year.
Songwriters are also asking the Department of Justice, which oversees performance royalty collection societies ASCAP and BMI through DOJ Consent Decrees from World War II, to make bold changes to move from government control of songwriter royalty rates to a free marketplace.
“I can make you laugh or cry. I can make you do both inside the same 3-minute story. That’s the power of music, and it all begins with a song,” Miller testified. “Congress, I ask you on behalf of my family and the families of American songwriters to change the archaic government regulations that prohibit us from pursuing a fair market opportunity for the songs we create.”
I met Taylor Swift when she was 14. When she played “Tim McGraw,” “Picture to Burn,” and “Our Song” that day in my office, I knew she was destined to become a star. But she became an international success without the promotional value that streaming services boast that they afford artists. Taylor may eventually allow Spotify to stream songs from her new album. She has that option. Rather than the government setting the rates and rules, songwriters should have marketplace options too.
Bart Herbison is executive director of the Nashville Songwriters Association.