One Step Closer For The Music Modernization Act
In this op-ed, Jeffrey Bennett of SAG-AFTRA and Mitch Glazier of the RIAA decry the recent questionable actions of SiriusXM and encourage those involved in the music industry to help the Music Modernization Act's progress forward.
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By Jeffrey Bennett, Chief Deputy General Counsel, SAG-AFTRA and Mitch Glazier, President, RIAA
The Music Modernization Act (MMA) is the result of a united music community working hand-in-hand to ensure fair treatment by services like SiriusXM who have refused to pay legacy artists and their labels for the performance of their recordings. The fight began years ago in state court with a finding that SiriusXM was an infringer, resulting in short-term settlements. The major labels voluntarily decided to pay artists, through SoundExchange, 50% of net royalties under those settlements.
The MMA contains a provision supported by our organizations guaranteeing artists 50% of royalties from direct licenses with services like SiriusXM that are entered into after the bill becomes law. In order to avoid any gaps, today our organizations agreed to additional language that would ensure this provision applies to going-forward licenses that are entered into before enactment.
We welcome good-faith discussions with like-minded allies who seek to improve the current music licensing system by supporting the MMA. But one company – SiriusXM – continues to hide behind excuses and fake concerns in order to kill the legislation. This bill currently has the support of 75 Senators. 415 members of the House of Representatives voted to pass it and NONE voted against. Thousands of artists, songwriters, producers, labels and others from across the music spectrum have joined together to seek these important provisions to improve the lives of countless creators.
We hope Sirius doesn’t stand in the way of progress. Let’s get this done.
Jeffrey Bennett, Chief Deputy General Counsel, SAG-AFTRA
Mitch Glazier, President, RIAA
It surprises me that Mr. Bennett and Mr. Glazier would so harshly judge the behavior of SiriusXM with respect to “legacy” artists. It is the principal of the services like SiriusXM who have refused to pay legacy artists and their labels for the performance of their recordings. SiriusXM is no charitable organization. Although they have paid almost three billion dollars to recording artists, far more than any other broadcaster, they have not paid more than was legally required of them.
And SiriusXM was not legally required to pay royalties to the recording artists of pre-1972 recordings. The so-called “loophole” that excluded the legacy artists from being paid does not rise to the level of a loophole. When Congress passed the Copyright Act of 1976, which immediately superseded the copyright laws of the individual states, Congress neglected to add the two sentences or so that would have made the Act retroactive to cover recordings made prior to the passage of the law.
Why the omission? No one is talking. Was it a back room political deal to exclude the older recordings, or were the proof readers of the act just very tired and missed the omission? In any event, recording artists and their record labels whose recordings were made before 1972, those recordings not being covered by the Copyright Act of 1976, were reduced to enforcing their right under the state laws in effect at the time. In no case did anyone believe that under the state laws the recording artists were entitled to performance royalties; this right simply did not exist at the time.
So, although state laws covered copyrights from when recordings first began to be pressed until 1972 when the federal law took over, no one ever asked, in or out of court, SiriusXM or any other broadcaster for performance royalties, because it was understood that no such right existed.
Only in 2013 did Flo & Eddie have the audacity to try to claim performance royalties under state law. Although a few publicity-hungry lower court judges decided for Flo & Eddie, when the cases reached the highest courts of New York and Florida the musicians cause of action was thrown out. The New York Court of Appeals could not resist adding in its opinion that bringing the lawsuit at all had been pretty silly since it required the belief no other artists, or their attorneys, in the preceding decades had seen the right that Flo & Eddie had found.
The question now before us is whether, in light of this history, New York common law includes a right to control public performances of pre-1972 copyrighted sound recordings. If so, the copyright holders have gone decades without acting to enforce that right.
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