HR 848 Preformance Rights Act

Recently I contacted my state representative to urge him to support HR 848, which would close the loophole that radio stations now enjoy of not having to pay musicians for their performance. I was shocked when he responded with a letter saying he didn’t support this! His two-page single spaced letter was full of examples that did not apply and showed his lack of understanding of the music industry. So I proceeded to write him a new letter:

Thank you for the letter responding to my request that you support musicians with this act. I am confused and concerned by your position that you do NOT support compensating musicians when they record the work of others. After reading through your letter I realized that your understanding of music copyrights and how the music industry works is not accurate, which would explain why you believe what you do and why your examples do not apply to the case in hand. I am not an attorney, but I have worked in the music industry for almost 20 years, so I would like to give you my perspective and the benefit of the knowledge and experience I have gathered through the years.

 Imagine a world without music – commercials without jingles, radio stations that only talk at you. Without the performers, the radio stations would only be broadcasting news and weather. Everything revolves around the performance and recording and replaying of music in our society – in our churches, our companies, sports, even our government (“Star Spangled Banner”). Without the performance of those songs written for these entities and events it would be very very quiet. And if a musician cannot make a living from the performance of the music, he cannot continue to make music no matter how much he “loves” it. While this takes the effect of radio not compensating musicians to an extreme, it illlustrates the importance of the people you do not believe should be paid. They are the core of the entire industry. Without them the industry ceases to exist (about which I cannot say the same for radio!). Musicians should be the first ones compensated in every case because everyone else – the songwriters, the radio stations, the internet – profits from what they create and produce. And if they do not produce it, the songwriters, radio stations and internet cannot profit. There is a symbiotic relationship among them, and all are important, but without the musician, the songs are not manifested and the radio stations have nothing to play.

 Your position that you “cannot support setting standards that provide compensation to groups of people for reproducing someone else’s work” is correct IF those people are not paying for the use of that work. Yet that is exactly what the radio stations are doing. The musicians are NOT.

 This bill is about the right to be compensated for performing LICENSED compositions which is what the musicians are doing with cover songs – not about copyright infringement and stealing songs. The musicians pay for the right to use and profit from something that someone else created, just like the movies do, just like satellite radio is doing, just like the radio stations should be doing. This bill simply makes the radio stations pay for something that others created and that other media are already required to pay for.

Making music is how musicians make their living. If you deny them the right to get paid for their performances and give their work out for free, especially when others are making money from their performances, you are denying someone their fundamental right to make a living.

If you allow one segment of the media (radio) to not pay for (steal) the use of a performance when other segments (satellite) must pay, this is not equal or fair and allows other media, yet unknown, to not pay for what they use to make money.

The precedent for paying musicians is already set by law which recognizes that musicians should receive payment when their songs are played on satellite, cable and internet (Sound Exchange), so WHY is am/fm radio exempt? If the legal precedent is established that musicians should get paid for the airing of their performance, then it should automatically extend to every medium or format. What is the difference between my hearing a song on radio or satellite? The music still gets played. The station still profits. The songwriter is also supposed to be paid in both cases. Why single out a segment of the media for a free ride on the backs of musicians who make the actual sound you hear.

Your analogy that this is the “equivalent to rewriting a famous novel, calling yourself the author, and not being penalized for plagiarism” is completely off base. NO ONE IS CALLING THEMSELVES THE AUTHOR of the songs they are singing. They are paying the author for the right to reproduce that work, which is how most intellectual properties make money.

Every time you watch TV you are witnessing the rewriting and reproducing of someone else’s work for profit. An author writes a book or story, a movie company licenses the novel and rewrites it as a screenplay. Actors are cast and a movie is produced. It is sold as a DVD, AND it is played on TV, which then must pay “residuals” to the key actors every time it is aired on broadcast or satellite TV.  I don’t recall hearing that only satellite was required to pay the actor residuals on movie and series and that broadcast TV was exempt. That wouldn’t make sense. Yet that is exactly what we have here – a performance of someone’s work is played on a broadcast media, yet the performer is not paid.

Your example of Mickey Mouse is also not applicable here either. We’re not talking about trademark infringement – none of these artists are saying THEY wrote the song and are not reproducing someone else’s actual recording. This is about legally licensing the right to re-record a copyrighted work, and then paying and crediting the original creator, and sometimes even the original recording artist. If someone covers a song and doesn’t pay or credit the writer, that’s a different thing. While trademarks and song copyrights operate slightly differently, your Mickey Mouse analogy breaks down this way: I could license the image of his character, which I then redraw in my animated flick. I pay Disney and credit them for the use of it. I would then be entitled to collect the money from the sale of that movie because I LICENSED the use of the image and was authorized to reproduce it and profit from it. That’s what musicians do when they cover a song – they license the right to reproduce a copyrighted intellectual property and are then authorized to distribute and profit from copies of their work. This bill protects their right to profit from something they have paid for the right to use.

And let’s not forget about inventions and patents. Talk about getting compensated for reproducing someone else’s work!

All of these examples maintain a very important concept – the creative work (song, novel, etc.) is being recreated by the licensing entity – the novel is rewritten into a screenplay and then performed and filmed, Mickey Mouse is redrawn, the song is re-recorded. This is different than licensing and reproducing the ACTUAL IMAGE or RECORDING, which is a whole other set of laws and fees, but also result profiting from a licensed property. In the music industry, the RIAA is the watchdog for reproducing actual RECORDINGS (what you hear out of the speaker) that others have made without permission. And the copyright office maintains a separate copyright form for the actual recordings (SR). That is patently illegal and should never be permitted. That is NOT what this bill is about.

Song copyright law gets even more interesting regarding the use and reuse of existing compositions. I could write and copyright an ARRANGEMENT for a song written by someone else. The song lyrics and music remain credited to the original writer but my arrangement belongs to me. I could even write and copyright completely new music set to a copyrighted poem or lyrics – the words would still belong to the writer who would be paid if I recorded the song – the music would be mine. Ironically, the writer of the words would then have to pay ME to record his lyrics using my new music.

A few other points to give you a deeper appreciation of the world of musicians and songwriters and the music industry:

Your focus on the song as the source of the fame is misplaced. As a songwriter I can tell you that it is the PERFORMANCE that makes a song famous.

Without a musician recording a song and marketing it, the song won’t make any money. And if the musician can’t make money from his performance, he can’t pay the songwriter. The songwriter only gets paid when the song is duplicated (CDs)/sold (downloaded) and played – in other words – used. It’s a symbiotic relationship that must go both ways. In fact, the musician is in some ways more important to the success of a song – if he doesn’t record it, the song only exists on paper. And, ironically, even BAD songs have made lots of money because of a GREAT performance or the fact that a famous artist performed it. The opposite holds true as well -a great song performed badly will flop. The success of a songwriter is in the hands of the musicians.

I think my songs are pretty good and I have recorded them myself, but until a song is brought to life by a musician who can get it heard, it is a dead piece of paper in a drawer. The recordings of my songs that have received the most attention and profit are NOT the ones I made. And I hope that someone else hears those recordings and wants to re-record it and make it an even bigger hit. I win, the musician wins, the listening audience wins, even the original recording artist wins due to new attention placed on the song. Can you imagine if once a song is recorded it is rendered unusable because of non-compensation laws! Stifling.

Furthermore, if the song wasn’t recorded the radio stations wouldn’t have anything play and therefore couldn’t make any money. You can’t play sheet music over the airwaves. So let’s give credit – and compensation – where it is due – in the hands of the Performers.

It is the PERFORMANCE on radio that is being paid for in this bill. Symphony orchestras and classical music is a perfect example. They HAVE to record the work of others, including works that have already been made “famous” by others. Are you against their getting paid for performing Bach or Vivaldi? How many opera fans have heard the same opera performed by all sorts of sopranos and tenors but the radio station plays a specific recording of Pavarotti performing La Boheme – famous by anybody’s standards. Nothing different in the arrangement or score – but his clarity and tone and diction and the essence of the hall and the recording quality all make that PERFORMANCE special and worthy of radio airplay. Not to mention his own renown. Why shouldn’t he be paid for his performance of a work that has been performed and recorded hundreds of times by others. And chances are the radio played that specific recording BECAUSE of the performer, the quality of the performance and the fact that the song is already famous and familiar to their audience.

Not every musician is a songwriter. Some of the most famous musicians have recorded or re-recorded the work of others. Some based their entire careers on it. Example: ELVIS never wrote a song in his life. In fact, in the early days of radio, nearly every record was a cover version. Frank Sinatra and Ella Fitzgerald were famous for interpreting other people’s songs. And, while the trends shifted with the Beatles and the Stones, the tradition of covering great songs never died and should never be stifled. “Girls Aloud record the Pointer Sisters’ ‘Jump’; Westlife record Billy Joel’s ‘Uptown Girl’, Phil Collin’s ‘Against All Odds’, Abba’s ‘I Have a Dream’, and Barry Manilow’s ‘Mandy’-Thanks to the boom in TV-created pop stars, ancient pop classics have never had it so good, with ‘Unchained Melody’ massacred afresh by Gareth Gates and ‘Bridge Over Troubled Water’ eviscerated by Hear’Say.” (taken from the synopsis of Cover Versions: Singing Other People’s Songs by Adam Sweeting)

The more times a song is recorded, the more money the songwriter can make. If a musician cannot get paid for re-recording a song, especially if he then still has to pay the songwriter, then there is no incentive to record the song! It costs MONEY to record, manufacture, distribute and market a song, whether it is written by the performing artist or not. In fact it costs MORE money to cover a tune because you have to pay the songwriter. So denying a musician compensation for a song will not provide much incentive to use existing songs and pay songwriters.

Just because you re-record a famous song doesn’t mean it will get played and make money. You still have to make it good, which is what the musician is ultimately being rewarded for. To not pay him for the effort and the success is wrong, especially if someone else profits from it. If it doesn’t get airplay, then he gets nothing. I thought that’s the way our system works. Unfortunately, right now, even if it does get airplay, the musician gets nothing. This bill is supposed to fix that gaping hole.

With the decline of CD sales, which has traditionally been a large percentage of musicians’ income, compenstation from other media is critical. The only thing left besides downloads is the performance – whether online, satellite, TV, or RADIO. There should be no distinction. Even elevator music is paid for!

The radio stations make money on the song whether it was re-recorded or original. In fact, they’re more likely to play a song that is already famous. So the radio stations base their entire business model on the work of the the musician with no responsibility to pay.

Most musicians, when they re-record a song, put their own spin, style or arrangement to it. Example: Glenn Campbell re-recorded Southern Nights originally written and recorded by Allen Toussaint. It was a minor hit with Allen, and Glenn made it an even bigger hit. Should he have ignored it becuase it was already recorded? I’m sure if you ask Allen that he would agree that Glenn is the main reason he is getting all those extra royalties for writing the song. Without Glenn’s performance, the song would have died in obscurity as a minor hit. Your example of Patsy Cline and “Crazy” is the same – ask Willie if Patsy deserves to be compensated for making that song famous again – I’m sure he’s VERY VERY glad for the extra income.

As a songwriter myself, I want many other musicians to record my songs and I’d love for them to become hits over and over again. I also want the musician who makes it a hit to be compensated and profit from their obviously great rendition of my song! I’m grateful to them. I certainly don’t want a song, once it’s recorded, to die because because some law says musicians can’t get paid because they RE-record the same song. Talk about stifling incentive.

And when is the last time you went to a concert? Did the group play any covers? Any “famous” covers? Did you ask for a discount cause you don’t believe they should be paid for performing someone else’s song? Of course not. You enjoyed it and clapped even harder because you recognized it and they did a great job on it. And check your CD collection – look how many covers your favorite artists do. Are you going to return the CD because they shouldn’t be compensated for reproducing someone else’s work?

The copyright laws specifically allow “covering” a song only once it has been recorded, so it actually encourages musicians to RE-record a song and thereby create a revenue stream for songwriters. The fact that it was already made famous only underscores the greatness of the song and rewards the writer for obviously writing something that lots of people want to record.

I hope this has provided you a new perspective. Thank you for your attention and I hope you can understand how important it is to support this bill.

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