On the heels of a freshly reintroduced bill that would require radio stations pay a performance royalty for music use, supporters are deploying a secondary attack. Rep. Darrell Issa (R-CA) has introduced legislation that would allow musicians to opt out of having their music played on AM/FM radio if the artist isn’t paid an agreed-upon performance royalty. Federal law currently only gives such an exclusive right to license music to copyright holders with respect to digital transmissions.
The bill does allow for a station to play a song—even without a musician’s blessing—if the broadcaster pays a royalty “identical” to that paid by a non-subscription digital streaming service. Attorney David Oxenford says based on that language it would amount to $.0017 per song per listener. So, if a station averages 1,000 listeners it presumably would pay $1.70 per song. “So it is not an absolute prohibition, just that you can’t play a song if you don’t pay the royalty,” Oxenford says.
Where would the money go? Issa’s proposal calls for half the royalties collected from radio stations to go to an unspecified collections agent, which would then distribute the money to record labels and others.
While the bill seems squarely targeted at radio stations, Issa says his Performance Royalty Owners of Music Opportunity to Earn Act or “PROMOTE Act” (H.R 1914) “calls the bluff” on both sides in the debate over performance rights. “The terrestrial stations playing these works without compensating the artists argue that airtime provides exposure and promotional value, while the artists argue the status-quo allows radio stations to profit on artists’ performances without providing any due compensation,” Issa said. “Our bill puts forward a workable solution that would allow those who would otherwise be paid a performance right to opt out of allowing broadcasters to play their music if they feel they’re not being appropriately compensated. This is a win-win that helps solve this decades-long problem in a way that’s fair to both parties.”
Issa is among five lawmakers who last week cosponsored the Fair Play Fair Pay Act that would create a performance right on AM/FM airplay. So is Rep. Ted Deutch (D-FL), who is also cosponsoring the PROMOTE Act. He says the bill would give recording artists more control over their work. “We have been told for years that AM/FM radio provides valuable promotion to recording artists, but those artists have never been given the opportunity to decide for themselves,” Deutch said. “It should be the artist’s choice whether to offer their music for free in exchange for promotional play, or to instead opt out of the unpaid use of their music.”
Yet supporters of a radio royalty could also be rolling the dice with such a proposal. If the bill were signed into law it could work to illustrate what broadcasters have long insisted—that artists want to be heard on radio, pointing to the efforts employed by record company promotional teams to get a song into rotation. Many of the biggest critics of the royalty system are artists who no longer release new music, they add.
The National Association of Broadcasters says it has “significant concerns” with Issa’s legislation. Spokesman Dennis Wharton said that the bill would “upend the music licensing framework” and result in less music being played on the radio—something that would hurt not only listeners but also musicians trying to sell records. He also noted support for a resolution opposing a radio royalty has so far been signed by 168 House members—more than half the 216 currently need to block a bill—and 21 Senators.
But Issa’s bill has the backing of the musicFirst Coalition which says the proposal will address the “glaring inequality” between online and satellite radio services which compensate artists and broadcast radio which doesn’t pay a royalty for over-the-air music use. “Music creators rightly expect to be fairly compensated for their work, regardless of whether their songs are played on satellite radio services like Sirius XM, Pandora, Spotify, YouTube or AM/FM radio,” musicFirst executive director Chris Israel said.