Pay To Play

In this country, we respect a person's intellectual property (IP), and the government offers copyright and patent statutes in order to protect IP -- be it inventions, works of literature, or songs. The purpose of these protections is to ensure that others cannot benefit from IP without the creators themselves also being compensated. The other day, I was driving in my car and heard an advertisement on Star 93.3 FM that very much annoyed me. The ad was sponsored by the National Association of Broadcasters (NAB), promoting the website NoPerformanceTax.org, and I would like to take this opportunity to inform everyone of the issue at hand.

When a song or musical work is created, there are two copyrights that can be obtained: one for performing arts work, and one for sound recording. The performing arts copyright registers the underlying musical work or song itself. The sound recording copyright registers literally a unique sound recording of the performing arts work, or the finished product you hear on a radio or CD, as there can be multiple recordings of the same song by different artists. In Congress right now, there are two bills (one in the House, one in the Senate) that would require radio stations and other users to compensate copyright holders of sound recordings for the use of their property for profit. Currently, the law states that only the composers and songwriters of musical works are required to be compensated when their work is performed on radio, but not the artist or entity that holds the copyright for the sound recording itself. For example, if you hear the song "One of Us" by Joan Osbourne on the radio, songwriter Eric Bazilian gets compensated, but Joan Osbourne and the other musicians who performed on the recording do not. It is a flaw that the current Congress is trying to fix.

Now, NAB obviously has a problem with this because it will cost them a bit more money, and the associated website tries to explain and spin the issue simply as money-hungry record companies wanting fill their pockets with more of your coin. This, however, is a blatant misrepresentation of the truth, and I would like to take this opportunity to keep you informed on the issue.

The website labels this legislation as a "performance tax," and states: "A performance tax is a fee that record labels want the government to impose on local radio stations simply for airing music free of charge for listeners." Yes, it is a fee -- in this country a person should be rightfully compensated when another party uses their IP for profit, which is what radio does. Make no mistake: the radio station you listen to is not about the music, the weather, the traffic, or the news, but rather about the commercials. Every single bit of programming you hear on a radio station is simply a tactic used to keep you tuned in from commercial block to commercial block. Radio stations are using artist's work for profit without compensating them, simple as that. And my instinct tells me that the use of the phrase "local radio" is meant to make you think of small mom-and-pop stations, and "record labels" is to make you think of enormous corporations. In truth, however, the vast majority of radio stations are owned my massive corporate conglomerates -- mostly Cumulus and Clear Channel.

The website states: "...money would flow out of your community and into the pockets of the record labels – the great majority of which are foreign-owned. The record labels would like for you to think this is all about compensating the artists, but in truth the record labels would get at least 50% of the proceeds from a tax on local radio." Aside form the fact that I don't know where they are getting the "50%" number, it is important to note that all deals are different, so no one artist or record label would get a set percentage of anything. And even if record companies were getting this 50%, the artists and musicians still need to be compensated for the continued use of their work. Furthermore, the website is trying to make you think that the money is mostly going overseas to those (scary) foreign countries. But most countries already have in place legislation similar to that currently in Congress. However, due to the fact that the US does not have a reciprocal law in place, foreign countries have refused to pay US artists and copyright holders for foreign performances of their sound recordings. The implementation of this law would actually cause money to start flowing into the US, and since American music is the most popular music in the world (both here and abroad), my guess is more money will be coming in than going out.

The website states: "Radio compensates composers and songwriters to the tune of about $550 million annually. It’s widely understood that songwriters do not have the same name recognition to financially exploit themselves to make money. Performers can make money from touring and personal appearances, merchandise and other licensing and branding opportunities like perfume and clothing lines." The amount of $550 million may be true, but it is important to note that in order to legally license all musical content -- from full songs to commercial jingles -- a radio station pays about 3% of its adjusted gross income each year. That's probably less than they pay their receptionist. And I find major fault with the ignorant argument that since performer have the ability to make money in other areas, they should not be paid for the use of their work. That's like saying a medical doctor who takes in a hefty income of capital gains should not be fairly compensated for his healthcare work because he obviously can make money in other ways. Also, aside from the unethical implications, let us remember that not every artist is a J.Lo or a P.Diddy. Most musicians are in the game to make music, not to whore themselves out for money. Take, for example, Bonnie Tyler. Twice yesterday I heard a fantastic song on the radio called "Total Eclipse of the Heart," written by Jim Steinman and performed by Bonnie Tyler. I'm sure you have heard this song, too, and every time you do Jim Steinman makes money. But Bonnie Tyler does not. When was the last time you bought a Bonnie Tyler CD, or a t-shirt, or saw her in concert?I think it's safe to say that Bonnie Tyler is not able to "financially exploit" herself in the way that NAB would like you to believe. Furthermore, the money collected under this new legislation would also go to compensate the other musicians who perform on the recordings, not just the name artists. In the case of "Total Eclipse of the Heart," can Steve Buslowe (bass) "financially exploit" himself? Can Larry Fast (synthesizers)? How many perfumes have you bought with Jimmy Maelen's (percussion) name on it? My guess is none.

With the complete structural change of the music industry in the past 10 years, we need to make it a priority in this country to keep the occupation of "musician" as a viable vocation, and not simply an avocation. The alternative would result in not only a downfall in quality in our nation's musical output, but also in our nation's quality of life. You don't realize how much of a role music plays in your everyday lives until one day it isn't there anymore, and we need to fight against that possibility. The National Association of Broadcasters doesn't care about the music. They care about the commercials. Please call your senators and representative and tell them they need to support HR. 848 and S. 379.