You are no doubt aware that the Copyright Royalty Judges handed down a final rule adopting the settlement covering streaming mechanicals reached by the major publishers and the richest and most dominant corporations in the history of Planet Earth: Apple, Amazon, Google, Pandora and Spotify. There are many who are dissatisfied with the negotiated rate, no doubt. There are many who are disappointed that the Judges perpetuated the mind-numbing complexity of the royalty calculation methodology (which probably costs more to account on a per-stream basis than the payable royalty).
That’s all true, but is a byproduct of the discriminatory practices frozen in time at the CRB, a libertarian hell-scape preserved in amber. As if taking a trip to Jurassic World (or at least 2009) wasn’t bad enough, the Judges refused even to place a toe onto the arc of the moral universe as they just did in the Subpart B rate setting in the same proceeding (i.e., the Phonorecords IV rates that abandoned the frozen mechanical and adopted an annual cost of living adjustment for physical and permanent download configurations).
I discuss this in more detail in a post on MusicTechPolicy in which I question whether a hidebound adoption of rates that fail to apply a COLA equally and treat likes alike in the same proceeding is lawful, much less good policy. While the Judges focus on giving the negotiating parties, aka the rich people, what they want and ignore the notorious unfairness of the Copyright Royalty Board whose rulings apply to all songwriters in the world who ever lived or may ever live regardless of representation, I argue that applying the same COLA calculation to streaming as to Subpart B configurations solves the problem. This post will lay out a simple method of implementing a COLA for streaming.
The policy goal would be to apply the COLA formula to streaming. Because the streaming formula is so unduly complex, it’s easy to understand the resistance to adding still another step. Remember that the greater than/lesser of monthly calculation is a series of steps that gets to a per-play rate of sorts. All of the greater of/lesser than calculations have been fought and salivated over by dozens of lawyers (literally) so changing any one of them is probably not productive and in my mind is not necessary to give effect to the COLA. Remember that in the history of the government’s mechanical rate, the COLA was applied to a rate as an uplift, not as a way to calculate a rate. The point of a COLA is always to preserve the value of the government’s rate and recognizes that the songwriter will not have a chance to revisit the rate for five year tranches and a lot can happen in five years.
The easiest way to apply a COLA to streaming is to derive the per-play rate given the current formula and then uplift it with a COLA. The Judges already have a COLA based on CPI-U . The Judges need only apply the COLA as a legal modification to the streaming mechanical and accept the base line rates in the negotiated settlement. Otherwise, the exact same songs with the exact same songwriters for the exact same recording in the exact same proceeding will have a COLA when exploited by record companies and none when exploited by the rich people. This result just seems arbitrary. The labels having shown the way to a fair result should be followed by the DSPs.
Applying the COLA to Section 115 may actually have a simple solution. The Judges already have a COLA formula. That formula can simply be applied as a step (5) in 37 CFR §385.21(b). This way the negotiated settlement terms are not re- opened.
Adding a COLA uplift to the applicable royalty calculation is simple. First, determine the applicable payable royalty for the accounting period concerned under the negotiated rates. Then apply the COLA formula derived by the Judges as an uplift to the payable royalties as a last step in the royalty calculation. The COLA could be calculated either annually or monthly although monthly seems more appropriate and accurate.
The uplifted amount (after any uplifted overtime adjustment to plays) would then be reflected on the applicable Copyright Owner’s royalty statement as the payable royalty for that accounting period.
This seems like a simple solution that brings the streaming mechanical out of Jurassic World and into the Era of the Songwriter.
Emmanuel Legrand prepared an excellent and important study for the European Grouping of Societies of Authors and Composers (GESAC) that identifies crucial effects of streaming on culture, creatives and especially songwriters. The study highlights the cultural effects of streaming on the European markets, but it would be easy to extend these harms globally as Emmanuel observes.
For example, consider the core pitch of streaming services that started long ago with the commercial Napster 2.0 pitch of “Own Nothing, Have Everything”. This call-to-serfdom slogan may sound good but having infinite shelf space with no cutouts or localized offering creates its own cultural imperative. And that’s even if you accept the premise the algorithmically programed enterprise playlists on streaming services should not be subject to the same cultural protections for performers and songwriters as broadcast radio–its main competitor.
[This] massive availability of content on [streaming] platforms is overshadowed by the fact that these services are under no positive obligations to ensure visibility and discoverability of more diverse repertoires, particularly European works….[plus] the initial individual subscription fee of 9.99 (in Euros, US dollars, or British pound) set in 2006, has never increased, despite the exponential growth in the quality, amount of songs, and user-friendliness of music streaming services.
Artists working new recordings, especially in a language other than English, are forced to fight for “shelf space” and “mindshare”–that is, recognition–against every recording ever released. While this was always true theoretically; you never had that same fight the same way at Tower Records.
This is not theoretically true on streaming platforms–it is actually true because these tens of millions of historical recordings are the competition on streaming services. When you look at the global 100 charts for streaming services, almost all of the titles are in English and are largely Anglo-American releases. Yes, we know–Bad Bunny. But this year’s exception proves the rule.
And then Emmanuel notes that it is the back room algorithms–the terribly modern version of the $50 handshake–that support various payola schemes:
The use of algorithms, as well as bottleneck represented by the most popular playlists, exacerbates this. Furthermore, long-standing flaws in the operations of music streaming platforms, such as “streaming fraud”, “ghost/fake artists”, “payola schemes”, “royalty free content” and other coercive practices [not to mention YouTube withholding access to Content ID] worsen the impact on many professional creators….
This report suggests solutions to bring greater transparency in the use of algorithms and invites stakeholders to undertake a review of the economic models of streaming services and evaluate how they currently affect cultural diversity which should be promoted in its various forms — music genres, languages, origin of performers and songwriters, in particular through policy actions.
MTS readers will recall my extensive dives into the hyperefficient market share distribution of streaming royalties known as the “big pool” compared to my “ethical pool” proposal and the “user centric” alternative. As Emmanuel points out, the big pool royalty model belies a cultural imperative–if you are counting streams on a market share basis that results in the rich getting richer based on “stream share” that same stream share almost guarantees that Anglo American repertoire will dominate in every market the big streamers operate.
Emmanuel uses French-Canadian repertoire as an example (a subject I know a fair amount about since I performed and recorded with many vedettes before Quebecoise was cool).
A lot of research has been made in Canada with regards to discoverability, in particular in the context of French-Canadian music, which is subject to quotas for over the air broadcasters which however do not apply to music streaming services. The research shows that while the lists of new releases from Québec studied are present in a large proportion on streaming platforms, they are “not very visible and very little recommended.”
It further shows that the situation is even worse when it is not about new releases, including hit music, when the presence of titles “drops radically.” It is not very difficult to imagine that if we were to swap Québec in the above sentence with the name of any country from the European Union [or any non-Anglo American country], and even with music from the European Union as a whole, we could find similar results.
In other words, there may be aggregators with repertoire in languages other than English that deliver tracks to streamers in their countries, but–absent localized airplay rules–a Spotify user might never know the tracks were there unless the user already knew about the recording, artist or songwriter. (Speaking of Canada, check the MAPL system.)
This is a prime example of why Professor Feijoo and I proposed streaming remuneration in our WIPO study to allow performers to capture the uncompensated capital markets value to the enterprise driven by these performers. Because of the market share royalty system, revenues and royalties do not compensate all performers, particularly regional or non-featured performers (i.e., session players and singers) who essentially get zero compensation for streaming.
Emmanuel also comments on the imbalance in song royalty payments and invites a re-look at how the streaming system biases against songwriters. I would encourage everyone to stop thinking of a pie to be shared or that Johnny has more apples–when the services refuse to raise prices in order to tell a growth story to Wall Street or The City, measuring royalties by a share of some mythical royalty pie is not ever going to get it done. It will just perpetuate a discriminatory system that fails to value the very people on whose backs it was built be they songwriters or session players.
When I made the soft call for impending stagflation last October I had no idea that that it would hit the US economy with such force and speed. The trends were, frankly, obvious and the signs unmistakable. But it’s the speed with which stagflation struck that I didn’t expect. We have seen each step of stagflation’s three point play undeniably demonstrated in real life and the result is inflation as far as the eye can see.
The return of 1970s style stagflation and the now-confirmed recession along with Federal Reserve “quantitative tightening” could mean policymakers recognize the need to end the easy money policy that has been in place since “quantitative easing” began around 2008. Arguably, the global economy has been in a post-Big Short bubble ever since, with the inevitable growth in the money supply that provided “too much money” that was chasing “too few goods.”
A recession and stagflation call is mitigated by the unemployment rate (which was about triple current rates during the 1970s), which itself is mitigated by the labor participation rate. A ten year view shows that the labor participation rate is still below pre-pandemnic levels even though the unemployment rate has been steady in the recent past. Yet even Y Combinator (that famously wanted to “Kill Hollywood” starting with the unions) warns of investment drying up for startups, but we’re not quite at the point of limited partners refusing to show up for capital calls at major VCs.
Inflation has, of course, been inevitable as has been the commensurate rot of inflation on the buying power of consumers. There is little doubt that inflation has been a long-term trend in the U.S. for quite some time and is likely to be with us for a good long while longer. For songwriters, if you’ve been following the rate increase confirmed in Phonorecords III, imagine what the rates would have been had the rates been indexed in this inflationary environment. We can understand how they missed indexing on Phonorecords III, but they cannot miss it on Phonorecords IV–or give it away as a bargaining chip.
Realize that one accepted method of extinguishing inflation is the “Taylor Rule” implemented by Federal Reserve Chairman Paul Volker in the 1970s for which Presidents Carter and Reagan took tremendous political heat–raise interest rates OVER the inflation rate. (Which is why there was a 21% prime rate–think on that.).
It was a different country then–America was a creditor nation. No longer true. Of course that’s not likely to happen today because of all the government borrowing during the easy money era. If the government had to pay a rate over the current 8.7% inflation rate, the government would collapse. It is likely that high inflation will be with us for a long time to come.
Being aware of the inflationary economic environment is a critical issue for songwriters in the US who are in the middle of a government rate setting proceeding before the Copyright Royalty Judges at the Copyright Royalty Board in Washington, DC. Songwriters at least have the opportunity to include a cost of living adjustment in the government’s rate and have asked for it in the streaming proceeding. Remember, there are two rate proceedings underway: One for physical mechanicals and downloads and the other for streaming. Songwriters, publishers and labels are in the physical and downloads proceeding. Songwriters, publishers and Big Tech are in the streaming proceeding soon to go to trial.
Credit where credit is due, Universal, Sony and Warner labels have included an annual CPI adjustment (or “indexing”) for songwriters in their voluntary agreement to raise the previously frozen mechanical rate for physical and downloads. The Copyright Royalty Judges also included indexing in the rate for webcasting of sound recordings that they recently decided (Web V). Many of the same Big Tech services were parties to Web V but are now arguing against CPI for songwriters in Phonorecords IV. Different hearings, true, but a lot of overlap in the parties and their smug little straight faces.
In our stagflationary economy, an agreed-upon inflation adjustment is a fairness making term that doesn’t make songwriters eat all of the inflationary rot from cost increases for “food at home” and force them to predict those price changes five years in advance. Indexing helps to fix that guess work in what is already a process of educated guessing in the non-existent willing buyer/willing seller folie à deux.
An inflation index is a particularly crucial tool when songwriters are prevented from stepping away from a deal because the government forced a deal upon them, like any statutory rate or in countries where there is a tariff or other compelled agreement.
Failing to use indexing makes the fairly controversial assumption that economically rational songwriters would charge a fixed price regardless of the fluctuations of the cost of energy, food and rent. By using the government to impose a non-indexed rate, there is a government-mandated implied discount that accrues to the benefit of the services, aka the largest companies in commercial history who just can’t bring themselves to treat songwriters fairly.
But want to bet these failures will have no impact on the services’ ESG scores on Wall Street?
Take Google for example, flatly rejecting indexing on the streaming side of the CRB proceedings:
“None of Google’s agreements with music publishers contain CPI adjustments for the [Per Subscriber Minimums] contained in those agreements. The Copyright Owners’ proposed CPI adjustment to PSMs is simply unsupported by marketplace evidence.” https://app.crb.gov/document/download/26528
Google is, as usual, full of it and is gaslighting the CRB with inapt arguments. Google is in a rate proceeding where the government—not Google—sets the terms. I know that line gets a little blurry for Googlers given how much strangulation Google sustains over government through its vast network of lobbyists, revolving door men and women, consultants and on and on and on.
I also know that Google would love nothing more than to dictate the terms to the government because Google has not-unjustified delusions of grandeur in this regard due to their mind-blowing level of brazen influence peddling. It’s not just Google, it’s all of the Big Tech oligarchs, the latter day Xerxes who seek to overwhelm creators through lawfare—songwriters are just low hanging fruit because of the ancient compulsory license—Section 115 of the Copyright Act—that is ready made for Big Tech’s copyright abuse.
But Google is not the government. It is the Congress and not Google that created Section 115 to interfere with private contracts and more importantly interfere with the right to privately contract. That’s a big deal in the US.
So, the issue isn’t what Google may have done in contracts with a totality of vastly different terms in a completely unrelated setting. It’s whether the government is paying just compensation for taking away rights under the Constitution of the United States. More specifically the 5th Amendment “takings” clause.
And the government’s compensation to songwriters is not just. It never has been.
Remember that at the heart of this process, the Judges are required to set a price for songs that the Judges believe reflects what a willing buyer would pay a willing seller in a transaction that has been devoid of willing buyers and sellers for over 100 years.
Google and other Big Tech DSPs in the CRB present the Judges with benchmarks based on prices that are not only distorted by years of abuse to begin with but are permanently disfigured. Remember, the government set the mechanical rate at 2¢ from 1909 to 1978 and had raised it very slowly ever since while at the same time pretending that the distortion of the 2¢ rate did not exist.
This deep 2¢ hole that songwriters are digging out of may not be the only reason songwriters are so poorly compensated, but this “tuppence” era definitely is a contributing factor. So whatever value-based rate increase that songwriters can claw out of the Big Tech services must be supported by a cost of living adjustment measured by the CPI just to tread water.
Price is truth if prices are truthful. And undistorted.
Otherwise, it’s just frozen mechanicals by another name, and Big Tech is simply free riding on the government’s license due to their outsized lobbying influence and government capture. (Need we name names?)
The songwriter is simply subsidizing the biggest corporations in commercial history.
The frozen mechanicals crisis points up one of the key problems in administering the statutory mechanical license in the US: Songwriters are a fragmented group. Merely chanting to courts that you represent all songwriters and publishers in the world when you know that is not reflective of reality is not a recipe for successful negotiations. It was only a matter of time until one of these deals imposed on the songwriter community turned sour. Frozen mechanicals turned out to be the black ice on the Nantucket sleigh ride.
Getting a result that is satisfactory to a broad group of songwriters and independent publishers is a challenge, no doubt. But the frozen mechanicals situation is actually not quite as bad as it could be.
First, we know what the dispute is about and the way the dispute could be solved. Those terms:
–Raise rates on the “Subpart B” configurations, meaning songs sold under the compulsory license in the permanent download, vinyl and compact disc configurations;
–Reach a private settlement and avoid the “battle of the experts” and further expensive litigation
–Include a broad group of activists from the US and other countries in the process.
–Create a settlement that is likely to pass review by the Copyright Royalty Judges (and ultimately Congress) and is at least less likely to get appealed by George Johnson and whoever else can manage to be granted standing.
–Unite the community against the streaming services.
The detailed and well-thought out sober comments by so many songwriters that seem to have been at least somewhat compelling and persuasive to the Judges tell the RIAA members who they must deal with and also give a good idea of what these group would find satisfactory. The RIAA members also have a unique opportunity to extract themselves from the “late fee waiver” deal that can be recast on more appropriate terms and include a much wider group with far fewer relations that give the appearance of conflicts.
Second, this is why it was encouraging to read this quote from Mitch Glazier, a long time community leader, deal maker, and head of the RIAA in an Ed Christman post from yesterday–a comment made outside the four corners of the RIAA’s controversial filing now characterized as “procedural”:
Glazier, however, says that he has no control who participates in the CRB proceedings — it has its own process that makes those decisions — he does have a say who participates in the negotiations for a new rate settlement and wants to include other independent songwriting groups, publishers and labels. He wants their point of view to inform negotiations, he says. But in order to have those discussion, it will take more time than the CRB currently would allow, thus the motion to delay responding to the judges on how adjudication should move forward.
I have to imagine that the major labels probably went into this Phonorecords IV proposed settlement first filed in early 2021 (so negotiated in late 2020, one would guess) feeling that surely their counterparties would have polled their membership and reached a bona fide consensus before making the deal. Particularly when the streaming companies were so obviously going to make the “good for the goose” argument in the streaming piece about frozen rates being applied equally to mechanicals regardless of who was paying.
This is particularly true when the services get to pay the old rates pending an appeal and are therefore incented to stretch out appeals as long as they can as a matter of drill if not sport. Another huge miss in the negotiation of Title I of the Music Modernization Act.
Songwriters know that if they are not at the table, they are on the menu as our dear late Governor Ann Richards used to say. It’s nice to see Mitch Glazier offering to include the wider group in settlement negotiations and we should all look forward to see how that goes. As Mr. Glazier said, his members are free to negotiate with anyone they want, and it’s obvious that the people who held themselves out has having all the experience and authority to speak for all songwriters in the world fell a bit short this time.
Let’s not make that mistake again. We are on the clock, and the golden hour for settlement is at hand.
Nice post by Ed Christman in Billboard explaining the continuing crisis on frozen mechanicals. Ed comes up with a rough justice quantification of the impact on songwriter and music publisher revenues in light of controlled compositions clauses in recording contracts that apply to (a) songs written and recorded by artists, or (b) songs by “outside writers” if and only if the artist can get the outside writer to accept the controlled compositions terms and rates.
For those reading along at home, one theory (aside from sheer leverage) that gets used in this context is that the artist/writer can agree on behalf of all co-writers to accept the terms of the license granted by the artist to the label in the controlled compositions clause because they are co-owners of an undivided interest in the song copyright and can grant nonexclusive licenses in the whole subject to a duty to account provided the license is not economic waste or self-dealing. Let’s just leave all that where it lays for now, but that story has never really been properly challenged–particularly the economic waste part given the rate fixing date issue and even the frozen mechanicals crisis itself. We’ll come back to that bit some other time.
The rate fixing date is a key part of the discussion for understanding the impact of unfreezing mechanicals. So what is that rate fixing provision?
Remember, the controlled compositions clause starts with reducing the minimum statutory mechanical rate in the US (and in theory in Canada subject to MLA) in effect at a point in time. That point in time is either commencement of recording (booo!), delivery, release or sale of a unit embodying the song at issue. Remember that the labels only pay mechanical royalties on physical and downloads (the rates at issue in the frozen mechanicals crisis)–streaming services pay for the interactive streaming mechanicals (and there is no mechanical for webcasting, a whole other beef).
You say, wait–isn’t the mechanical rate 9.1¢? Why does it matter when the record was recorded, delivered, released or sold? Won’t the rates all be the same? And you’d be right if you were asking about a record recorded and released in 2006 or after, or a record recorded and released between 1909 and 1978, like, say some titles by Bob Dylan, The Beatles, Otis Redding or Miles Davis.
But–it wasn’t always this way. The mechanical royalty rate was set at 2¢ by Congress with the first statutory license, i.e., compulsory license, in 1909 and did not change until the 1976 revision of the US Copyright Act effective 1978. The rate then began to incrementally increase over the years until it reached 9.1¢ in 2006, a phased increase that was to compensate for Congress failing to increase the rate for 70 years, aka “the Ice Age”. The Congress really screwed up songwriters’ lives by freezing the rate at 2¢ during the Ice Age and songwriters and their heirs have been paying for it ever since, right up to the 2006-2022 period, aka “the Second Ice Age” or the Return of the Neanderthals.
In an effort to help songwriters shovel out from the Ice Age, The Congress also authorized indexing the minimum rate to inflation from 1988 to 1995. Indexing is again on the mind of the Copyright Royalty Board right now–bearing in mind that an increase in rates due to inflation has nothing to do with the intrinsic value of the song copyrights so there’s no confusion. Indexing simply applies any increase in the consumer price index to the statutory rate and preserves buying power. In a way, it is the opposite of a case about value. Indexing assumes that the value issue was already decided (in this case in 2006) and simply preserves buying power so that the “nominal” rate of 9.1¢ in 2006 can still buy the same amount of goods or services in 2022 (or 2023 in the case of the CRB rate period). Otherwise the “real” rate, i.e., the inflation adjusted rate, is not 9.1¢ it is about 6¢.
Remember–the proposed rate increase to 12¢ by the CRB is not about value, it’s about buying power because it’s solely focused on inflation.
So back to controlled compositions. It is no coincidence that at the same time as the 1978 increases were phased in, the labels established controlled compositions clauses that knocked songwriters back down. They would probably not have gotten away with freezing by contract at 2¢ so they let the rate float up but much more slowly and with several caps. The first cap is the maximum number of songs, usually 10 or 11. The next cap is the infamous 3/4 rate, where the label pays based on 75% of the minimum statutory rate. But the third cap is the rate fixing date and that’s the one we want to focus on in the unfrozen mechanicals context.
In simple form, it looks something like this contract language:
If the copyright law of the United States provides for a minimum compulsory rate: The rate equal to seventy-five percent (75%) of the minimum compulsory license rate applicable to the use of musical compositions on audio Records under the United States copyright law (hereinafter referred to as the “U.S. Minimum Statutory Rate”) at the time of the commencement of the recording of the Master concerned but in no event later than the last date for timely Delivery of such Master (the applicable date is hereinafter referred to as the “Copyright Fixing Date”). (The U.S. Minimum Statutory Rate is $.091 per Composition as of January 1, 2006);
The way that the statutory rate increases come into the controlled compositions clause is because from 1978-2006 the statutory rates increased across albums delivered across album cycles. If you consider that the rates used to increase about every two years and that an album cycle can be two years, it’s likely that LP 1 would have a lower rate than LP2, LP 2 than LP3 and so on right up to 2006.
Also remember that the increases in rates are prospective, meaning that the controlled compositions rate on recordings delivered in the future will, of course, get the higher rate, even if the past rates don’t change which they don’t, at least not yet. Also consider that permanent downloads often are excluded from controlled comp treatment and are paid at full rate, probably on the rate fixing date in the artist’s agreement. Sometimes the download rates “float” or increase in line with increases in the statutory rate, but that’s part of individual negotiations.
If there is an outside songwriter who does not agree to accept the artist’s controlled composition rate (and there are plenty of these) what happens? Typically the label will account to the outside writer at their full minimum statutory rate but will deduct that payment from the maximum aggregate mechanical royalty payable to the artist (i.e., the 10 song cap). There’s some twists and turns to this involving rates on different units “made and distributed”, but for our purposes there is one clear thing to understand:
Because of the rate fixing date which is frozen by contract (the Mini Ice Age) the artist/songwriter will be paying a higher mechanical to the outside writer from a frozen royalty “pool”.
This is why you should always, always demand “protection” for at least one outside song in your contract and then review each album to determine if that needs to be increased. This is particularly true for records made in places like Nashville where the record company will demand you work with “A” list songwriters (assume none of whom will take 3/4 rate) and then try to deduct the difference between the uncontrolled rate and the controlled rate from you (and if it gets big enough, cross it to your record royalties). (Not only will A list writers not take the 3/4 rate, they’re pissed because they can’t charge you double stat like they do double scale for sessions.)
Example: You have a 10 x 3/4 rate cap on mechanicals, the “cap rate”. That’s the 68.25¢ album rate you hear about (10 x .75 x 9.1¢). Say you have 10 songs on your album and you wrote all of them. You get the entire 68.25¢. If you had two outside songs whose writers get 9.1¢ under current rates, you deduct 18.2¢ from the cap rate, and that leaves 50.05¢ as the “controlled pool” or the total mechanical royalty payable to the artist/songwriter (actually all controlled writers, but leave aside that wrinkle).
So you can see, that’s no longer a 75% rate, it’s actually more like a 55% rate.
Now let’s assume that the new rate is 12¢. Same calculation, two outside songs now get 24¢, but the cap rate stays the same because of the rate fixing date. During the Mini Ice Age, i.e., while that cap rate is fixed at 9.1¢ x 10 x .75, the controlled pool now is expressed as 68.25¢ – 24¢ = 44.25¢, or about 48% (44.25 ÷ 91). The artist’s publisher is not going to be wild about that; the outside writer’s publishers will be thrilled.
This will start to true up on the next LP that takes a rate fixing date after the 12¢ rates go into effect. In that situation you’d be increasing both sides of the equation, so the cap rate would increase to 90¢ (10 x .12 x .75). The outside writers still get 12¢ each for two songs (or 24¢) which is deducted from the cap rate to get a controlled pool of 66¢. The true controlled comp rate is then back to about 55%.
These effects will be less pronounced if you have protection for one or more songs (or fractions of songs) or you have a higher cap, say 11 or 12 instead of 10 (with corresponding increases on other configurations). But you see the trend line.
I think this leads to the conclusion that increasing the statutory rate is a huge step forward and we should all be grateful to the Judges. The rate fixing dates for catalog titles (really the entire rate fixing date concept) must also be considered and any new effort to tweak the controlled compositions clause to effectively nullify the Judges’ rate increase will no doubt cause further conflict.
One day Congress will again act to reduce the effects of the controlled compositions clause and especially the rate fixing date, but in the meantime the Judges may well visit the issue to the extent they are able before we see the Return of the Neanderthals.
Both the consumer price index and the producer price index increased this month and the Federal Reserve is making noises like it intends to increase interest rates and reduce what is called the Fed’s “balance sheet”. Once again, the freeze on mechanical royalties for physical records like CDs and vinyl and failure to index to the consumer price index looks increasingly irresponsible if not downright antagonistic. If you agree that songwriters need to have a cost of living adjustment permanently built into all statutory rates, we have to also recognize that may be a heavy lift and needs to be supported by evidence. Here’s a few ideas.
Consumer Price Index
The next chart shows increases in the categories of goods that make up the CPI.
The January inflation rate is the highest since February 1982. If you don’t remember what was happening in February 1982, it was the end of the 1970s stagflation with supply side “exogenous” shocks to a number of sectors including energy. The other hallmark of the 1970s and early 1980s corresponding to the staglation is a black swan (we hope) increase in the prime rate of lending. The prime rate exceeded 20%.
One could say that the only reason that the prime rate is not much higher today is because the Federal Reserve adopted a zero interest rate policy (or “ZIRP”) in response to the 2008 financial crisis as did other central banks in other countries. The idea was that cheap money would encourage banks to make loans to borrowers as well as other banks and more debt would stimulate the economy. That’s why interest rates have been at or near zero for so long. (Not everyone thought this was a good idea, including me.) The truth is we don’t really know what interest rates would be absent the central banks’ distortion of the credit markets–perhaps for all the right reasons, but distortions nonetheless.
Increases in the 1970s prime rate caused all interest rates to increase, including credit card rates and mortgage rates. We are accustomed to seeing mortgage rates around 5% partly due to ZIRP, but mortgage rates were much higher in the 1970s. This caused a contraction in the number of people who could qualify for a mortgage and extremely high mortgage payments for those who could (not to mention “points” paid to compensate for the credit risk).
Remember the Federal Reserve’s mission is to use monetary policy to keep inflation under control and unemployment low. There are two policy “weapons” the Fed has to accomplish its mission: interest rates and the money supply. When the Fed adopts a ZIRP, what happens if those low rates don’t have the desired stimulus? That just leaves the money supply when zero interest rates lead to a “liquidity trap.”
With interest rates at their lower range (or “lower bound”) the Fed stimulated the money supply in a particular way called “quantitative easing” which involved increasing the money supply by creating money to buy treasury notes in a special way (not exactly printing money, but effectively similar) and also buying mortgage backed securities and other bonds in the open market. This was especially true in “busted offerings” when the government financed deficits with Treasury notes purchased by the Federal Reserve. And yes, that does sound rather hinky.
We’ll come back to that ZIRP policy and quantitative easing in another post, but let’s just say for now that the Federal Reserve provided more money to certain kinds of banks than they’d ever seen before in an effort to stimulate the economy without raising inflation. Yet they must have always known that an easy money policy was inflationary and due to ZIRP they had limited options–to kick the can down the road. Like a balloon payment in a mortgage, the devil would come for his due at some point. That time may be now.
Whenever inflation goes up, there is an assumption–fueled by those who wish to avoid blame–that inflation is just transitory and will recede if the central banks take anti-inflation steps, such as raising interest rates by targeting even higher interest rates on Federal Funds (currently 0.25%) on top of an already higher 10 Year Treasury Bond.
If the Fed raises rates by .25% five times this year as projected by banks like Goldman Sachs, that will essentially double the interest payment on government bonds which fuels both federal spending and the national debt. The problem with that is the higher interest rates proposed by the central bank also affect government borrowing to service the $30 odd trillion dollar national debt. Maybe you can withstand your credit card rate increasing by five percent, but the government cannot.
As you can see from the charts above, some of this inflation is increasing at an increasing rate. It is going to take time to recede. Energy markets are fluid, for example, but rents are not. The conventional wisdom is that mortgage rates and home prices vary inversely to each other. Mortgage rates can also have an effect on rental prices, too; the harder it is to qualify for a mortgage, the more people have to rent, so rental prices go up. Rental prices are also sticky, meaning that once they go up, they don’t decline very rapidly or at all. Ask yourself the last time a landlord cut your rent?
Speaking of the government’s credit card, it is important to look at the effect that inflation has on interest rates for another reason: many people have been dealing with the cost of inflation is by putting it on the credit card. Not everyone has a seven figure base salary.
Producer Price Index
The Producer Price Index rose 1.9% in January to 9.7%. Remember, the PPI is a leading indicator of future inflation because producer prices foreshadow increases in future goods as lower priced inventories decline and price increases are in part passed through to consumers (or are in part absorbed by firms to sustain demand).
Should songwriters expect inflation rates will effect the statutory rates in the coming years? Remember that inflation expectations can have a direct effect on actual inflation because those expectations determine wages–if you think inflation will rise, you ask for higher wages. You see this on the interactive streaming mechanical rates (which recently were amended to include a cost of living adjustment), but for some reason not on the physical.
Determining inflation expectation requires survey data, and the benchmark surveys of consumer sentiment and inflation expectations are conducted by the University of Michigan. US inflation expectations for the next 12 months rose to 5% in February of 2022 from 4.9% in January. That is the highest level of 1-year Inflation expectations since July of 2008.
All this confirms again that inflation for the foreseeable future is not and will not be “transitory.” Statutory rates should be indexed to inflation for the foreseeable future. This should not even be a question (and was the rule in the latter half of the 1970s, and all of 80s and 90s). If the Copyright Royalty Board will not include a cost of living adjustment in all statutory rates, perhaps it should be imposed on them.
We hear from an increasing number of songwriters who are learning about what is going on in the current rate fixing movements at the Copyright Royalty Board, some for the first time. In a nutshell, the Copyright Royalty Board rate fixing is a hugely expensive process that puts generations of children through university among the participating lawyers and lobbyists. By the time the money gets through the snake, so to speak, that process results in what are, frankly, scraps delivered to the kitchen tables of songwriters at the end of the day.
The rate fixing proceeding sets the statutory rate for certain times of song uses that are mandated by the federal government. There are two main categories of statutory rates under that compulsory mechanical license: physical (sometimes called “Subpart B” rates) typically paid by record companies, and interactive streaming (sometimes called “Subpart C” rates) typically paid by services like Spotify. (At least theoretically paid–often not judging by the size of the $424 million black box that is still just sitting under the collective’s five year plan.)
We all know that songwriters have been crushed by the failure of streaming mechanical rates to keep pace with streaming’s cannibalization of physical carriers. What many songwriters do not know is that one reason why their mechanical royalty income has dropped is due to an agreement among the major players to freeze the physical mechanical rates at the 2006 level of a minimum rate of $0.091 (currently worth approximately $0.06), and then to extend that freeze several more times for a total of 15 years so far. (The freeze essentially codified the controlled compositions rate but applied to all songwriters in the world.) There is a current proceeding at the Copyright Royalty Board in which the major players have reached an agreement to extend that 2006 freeze for another five years starting in 2023 and running to 2027. Shocking, I know.
In fact, the majors have now got themselves boxed into a corner on the interactive streaming rates that they are trying to increase. Why boxed? Obviously because the services are not stupid and if they see physical mechanical rates frozen when the record companies are paying, they ask why should the streaming rates increase when the services are paying? (And before you ask, this bid rigging is “legal” because everyone gets an antitrust exemption (17 USC §115(c)(1)(D). Cute.)
There is, of course, an unholy connection between statutory rates, controlled compositions clauses in record deals and mechanical royalties–see this post for the history. Let’s just say for this post that a page of history is worth a volume of logic.
The point I want to make to you in this post is that time is going by and no progress is being made in the current proceeding (styled “Phonorecords IV“) just like there’s no progress being made in the last proceeding (styled “Phonorecords III“); some people ask why these rates and appeals were not resolved in the giveaway that was part of Title I of the Music Modernization Act (aka the Harry Fox Preservation Act) which created the Mechanical Licensing Collective. If you’re going to make a major change to collectivize songwriters and vastly expand the scope of the compulsory mechanical license, shouldn’t you have gotten something for it? I’d count myself in the group that’s asking those questions so you know my bias. In a recent comment, I called the Copyright Royalty Board the “cornucopia of chaos,” which it is at least on the mismanaged mechanical royalty rates.
Inflation and Mechanicals
One thing that everyone should be able to agree on is that inflation is a major factor in determining any statutory royalty rate. This is certainly standard with the webcasting rates negotiated by SoundExchange with the same Copyright Royalty Board. It seems that if someone just asked for “indexing” the rates to inflation, the CRB just might give it. But no one is pushing on that open door except the songwriters and publishers who commented on the majors proposed settlement but who cannot afford to be part of the Phonorecords IV proceeding itself.
So leaving aside an increase in all of the actual rates that would reflect the value of songs, it does seem that we must accept the thinking of many economists that inflation is here to stay for a while and will surely extend into the 2023-27 rate period of Phonorecords IV. I’ve posted about these indicators before, but here’s some additional information. A cost of living adjustment seems like it should be a pro forma request–it only increases the rates if there is an actual increase in the cost of living as measured by an objective standard, typically the CPI-U (Consumer Price Index-Urban) measured by the government’s Bureau of Labor Statistics.
Since we are projecting at least two years into the future, let’s consider a few metrics that measure two years into the past. What is the trend line for inflation? Up and to the right, as they say.
US Inflation Rate
We normally don’t spill much ink on the stock market because markets go up and down, can’t pick a top and can’t pick a bottom. But–stock markets are often a leading indicator of the direction of growth in the broader economy so let’s look at what’s been happening in a few different measures. Remember–the conventional wisdom is that a 20% correction to the downside is the definition of a bear market.
I have been beating the stagflation war tocsin for quite some time now (since May 2021), and unfortunately I think the markets are waking up to the true-1970s style stagflationary environment we may be entering. This means lower growth combined with surging prices for consumers and producers. And that is truely bad news bears. (If you don’t know about 1970s stagflation, take a few minutes and read up on it. And even if you don’t, the negotiators of the statutory mechanical rates really should know. Some of them may have lived through it the first time around.)
The tech-heavy NASDAQ index has dropped about 14% since November, returning to February 2021 levels with no end in sight.
The broader Russell 2000 is more revealing with a 19% decline over a few weeks as more inflation/stagflation confirmation data comes in:
This broader decline is confirmed by the S&P 500:
And if you were looking for confirmation of declining retail sales as a measure of growth, consider Amazon’s stock performance:
A little closer to home, consider Spotify’s recent stock performance which shows its pandemic-fueled riches coming back to reality (although not so good for any employees who got a stock option grant in the last 18 months or so):
Remember, the bond market is exponentially larger than the stock market. We’ll come back to this, but consider what is happening in the bond market and think about this question: what could cause both the stock market and the bond market to decline?
US Savings Rate
The savings rate shows a couple of anomalies where the savings rate spiked to unnatural highs of 34% in a lockdown era and again to 27% after government stimulus, but–the savings rate has sharply declined to pre-pandemic 2018-ish levels Why? I would speculate that this is partly due to rising prices of goods to consumers, particularly energy, rent and food and the decline of “real” wages (nominal wages less inflation).
Consider a couple of inputs–there are many–but note for our purposes that these commodity prices are at or near recent highs, or are retracing recent highs. The trend line is up and to the right, which suggests that these prices are likely to continue upward into at least the first year of the Phonorecords IV rate period (2023) and potentially beyond.
However you feel about fossil fuels, the reality for singer/songwriters or bands is that the way they try to supplement their declining songwriting income is by touring and for almost everyone, touring means gasoline. I don’t have to tell you what gasoline prices are doing–you know whenever you fill up the van. This chart is a measure of gasoline futures, which is the bet that the commodity traders are making on the future price of gasoline (not the price at the pump where you live). Again, the trend line is up and to the right.
And of course if you’re going to make it to the gig or the writer room you’ll need to avoid that freezing to death thing and you’ll care about heating oil prices, up 70% year over year:
To take it a step back, crude oil is closing in on $100 a barrel due in part to exogenous supply side shocks and contractions. If crude goes over $100, we are in a whole new world that we have not seen since 2014.
So you get the idea, right? This is all evidence supporting a cost of living adjustment for mechanical royalties. When the stock market declines, particularly declines sharply as it is currently performing, that is largely to do an expectation of slower growth in the economy as a whole. They’ve been wrong before, but the market is actually a pretty good leading indicator of the direction of growth.
Declining stock prices foreshadow declining earnings which foreshadows declining economic growth. What happens when growth decreases? Inventories may drop, and supply declines (which is already happening and you know that if you’ve been to the grocery store lately). GDP may also decline.
Remember the stagflation three point play? In this chart, Y1 GDP declines in Y2.
Lower growth or economic stagnation is the “stag” part of stagflation.
When bond prices go down, typically interest rates are trending up, which signals an inflationary outlook. If current bond prices decline because interest rates are increasing (or are anticipated to increase), that is most likely anticipating the Federal Reserve’s announced rate increases in 2022. The number of rate increases is anticipated to be somewhere between three and five (some say even six) in 2022. The Fed increases interest rates to tamp down inflation, so you can say that lower bond prices (which vary inversely to interest rates) is anticipating the “inflation” part of 1970s-style stagflation. Just to be clear, this is all readily available public information.
It’s becoming more obvious that we are watching a slow moving train wreck (cynics like me might say we’re beginning to get hit with the balloon payment for 2008 after 15 years of quantitative easing, but that’s a story for another day). The slower the train wreck, the more likely the wreck will occur during the Phonorecords IV rate period. Since the Federal Reserve is still busily printing money, these metrics are all leading indicators of how much blood will be left on the floor starting around March 2022 or so. And we haven’t even talked about what the announced Federal Reserve rate hikes will do to the housing market even if each one is a relatively small increase.
You don’t need an expert economist to produce any original research on this for the CRB–the question for songwriters is why don’t we already have a government rate indexed to inflation? The indexed rate is only paid if you actually get an increase in the CPI, which even then only preserves the value of whatever nominal rate you do have–it’s not a “real” rate increase. So why not at least try to get a cost of living adjustment? There’s no reason not to at least try to get indexing on every statutory rate which was the standard approach on mechanicals for many years after 1978 until the 2006 freeze. Unless your bonus is tied to a big percentage increase in the headline rate rather than the less obvious indexing that would actually protect the value of songs.
Which all seems to be to be so obvious that if you don’t have it you’d have to ask yourself, do I feel lucky? The odds are all on the house.
All of the economic indicators are telling us that inflation is going to be around for a while–so songwriters should expect some cost of living adjustment based on the Consumer Price Index when the Copyright Royalty Board sets mechanical royalty rates, especially for the frozen mechanical rate on physical phonorecords. Why do I say that?
The Producer Price Index for 2021 was measured at 9.7% by the Bureau of Labor Statistics, the largest calendar year increase since 2010. The PPI is a leading indicator of inflation as measured by the CPI because it measures a large basket of raw inputs and future price increases that will affect the CPI in weeks or months.
The University of Michigan survey of consumer sentiment fell to 68.8%, its second lowest level in a decade (the lowest being in November 2021). The survey also measured “confidence in government economic policies is at its lowest level since 2014.” The consumer sentiment survey indicates that consumers expect bad times ahead, or at least expensive times. This can have a pronounced effect on consumer inflation expectations.
Consumer inflation expectations remained unchanged after rising strongly over the last year, particularly the one-year outlook. Inflation expectations can be a self-fulfilling driver of inflation for a number of reasons such as FOMO pricing on homes and cars as well as wages–if you expect inflation to rise x% in the next 12 months, today you will seek wage increases of at least x% (if not more).
All of this tells us that the entire idea of extending the freeze on statutory mechanical royalties gets more absurd by the day. It’s entirely reasonable to “index” statutory mechanical royalties during the current rate setting period of 2023-2027 as we’ll all be very lucky to get through that period without suffering crippling inflation that will further erode the 2006 rates the CRB has used for the past 15 years.
If you follow economics, you probably have heard the expressions “real wages” or “nominal wages” or “real” versus “nominal” wages. This isn’t a Cartesian metaphysical discussion–it’s about the effect of inflation on what they tell you you’re getting paid. Nowhere is this truer than with the statutory mechanical royalty rate. The rate will inevitably decline over time due to the rot and decay of inflation. Inflation is like having a cavity in your tooth that you don’t fix. It doesn’t go away. It may not hurt yet but it’s going to.
The effects of inflation are hardly a secret. Because of the effect of inflation on interest rates set by the Federal Reserve (who is charged with keeping inflation under control), vast numbers of people around the world keep watch on U.S. inflation rates as well as inflation rates in other countries.
For example, an hourly worker might be paid $12 an hour by her employer. That’s her “nominal wage” or “money wage.” But the issue is not what the worker is told they are getting paid, it’s what the worker can buy with her wages. What her nominal wage buys her is her “real wage” or her nominal wage adjusted by inflation during the same time period. Real wages are always less than nominal wages. This is why workers commonly get annual cost of living adjustments to nominal wages that increase their nominal wages based on inflation in addition to nominal performance-based increases. The same is true of entitlement payments like Social Security which just announced its biggest inflation adjustment in many years.
This is particularly important when understanding nominal and real statutory mechanical rates set by the government’s Copyright Royalty Board every five years. With a nominal wage (as opposed to a government rate freeze like a price control), there are a number of different countermeasures you can take in response to a wage freeze and take quickly. You can always try to negotiate a higher hourly or annual wage if you are falling short of inflation. You can also try to quit and find another job that pays more money. Perhaps even get an annual raise built into your salary.
However, with the statutory mechanical royalty, there is no escape. Songwriters are at the mercy of both the government (in the form of the Copyright Royalty Board) and the people who are supposed to be negotiating for them who seem to have decided that millions of songwriters don’t need a cost of living adjustment. Without “indexing” the statutory mechanical to inflation (meaning a CRB ruling requiring automatic cost of living increases based on increases of inflation), songwriters’ buying power actually decreases over time. That’s the difference between the nominal mechanical royalty and the real rate, i.e., the inflation adjusted rate.
Nowhere is this more apparent than with the “frozen mechanical” that you’ve probably heard a lot about if you’re a regular reader. It’s called “frozen” because the rate for physical and vinyl was set by the CRB in 2006 and has not been raised since–apparently at the request or acquiescence of those negotiating in the songwriters’ interest. Think about that–remember what happened in 2008 (just a couple years after the rate was frozen)? The Great Recession aka The Big Short.
It may not be obvious to you but most of the laws in the US are not passed in Congress and they are not signed by the President. The overwhelming majority of these laws are created by administrative agencies, often located in the Executive Branch, but not always. When it comes to songwriters there is a federal agency that has almost total control over certain aspects of your life.
That agency is the Copyright Royalty Board which has three “judges” that are appointed by the Librarian of Congress (therefore are in the Legislative Branch of government along with Congress). While these members of the Copyright Royalty Board are styled “judges” they are not “all purpose” judges appointed by the President and confirmed by the Senate (under Article III of the Constitution for those reading along at home). (This CRB appointment issue is a matter of some debate but we will talk about the appointment issue some other time (attention Justice Kavanaugh).)
Whether you know it or not or like it or not you have delegated your personal agency to the CRB and you have also delegated your agency to the people who can afford to appear before the CRB. This is the classic case of the merger of the little intellectual elite in a far-distant capitol who think they can plan your life better than you can. If you have no idea about the CRB, there’s an easy answer–you’re very unlikely to ever wander into a CRB hearing because the hearings take place in the Library of Congress which is not someplace that songwriters typically are found. Even so, you have delegated your authority whether you know it or not and whether you like it or not to certain representatives of the music publishing community who act on your behalf and probably without your direct authorization. There’s plenty of blame to go around. To paraphrase Lord Byron, if you want a friend in Washington get a dog. Preferably a big one with teeth.
Here’s an example. According to government data, 9.1¢ in 2006 is worth approximately 13¢ today, or approximately a 33% inflation rate. That means that the frozen 9.1¢ rate in 2006 has the buying power of approximately 6¢ in 2021. In other words, the real mechanical rate has actually declined although the nominal rate has stayed the same. Why? Because like King Canute commanding the ocean, the nominal rate was not increased to at least stay even with inflation and inflation rotted it from the inside out.
So you can see that when you’re considering the mechanical rate that is set every five years by Copyright Royalty Board, the rate that matters is the real rate. However, the CRB only set a nominal rate for songwriters in 2006 even though they could have increased that nominal rate based on increases in the consumer price index. They could also have increased the rate in Phonorecords II or Phonorecords III but did not.
And now 15 years later, the frozen mechanicals crisis has been engaged by a revolt of the songwriters in Phonorecords IV, currently before the CRB. The struggle is all about real vs. nominal mechanical rates.
No one needs to be told that inflation is on the rise. We all see the evidence everywhere we go: gasoline prices, groceries, rent, health care, you name it. Inflation may not have increased prices to the point that large numbers of consumers are substituting away from particular goods because they can’t afford to buy, but it’s getting there.
This is important for songwriters who are paid on a statutory rate set by the government’s Copyright Royalty Board that tries to approximate what a willing songwriter would charge a willing music user in five year tranches. It is this five year bet that causes heartburn–one solution that the CRB recently applied to webcasting is to index their government royalty to inflation so that the royalty actually retains its value and increases as inflation increases, called “indexing”.
For whatever reason, the rates for physical configurations and downloads has not contain inflation indexing since it was put in place in 2006 and still does not in the current proposed settlement. Songwriters across the board are resisting this and demanding indexing as part of the “frozen mechanicals” debate as part of the current Copyright Royalty Board rate setting proceeding (styled as “Phonorecords IV“).
Personal spending in the US increased 0.6% mom in September, following an upwardly revised 1% rise in August and above market forecasts of 0.5%. Spending on health care, food services and accommodations, foods and beverages, pharmaceutical products and gasoline offset lower sales of motor vehicles. Personal income on the other hand fell 1%, the first decline in 4 months and much more than expectations of a 0.2% drop.
Even if you don’t go as far as Twitter CEO Jack Dorsey’s assessment that “hyperinflation” is coming soon, it’s pretty easy to see that if the Copyright Royalty Judges fail to add indexing to the mechanical rate (frozen or not) as they had so many times in the past, songwriters will find their government royalty eaten away by inflation. (“Hyperinflation” is a rise in prices of 50% a month.)
It’s also becoming clear that inflationary pressures will continue well into 2022 and 2023–the rate set in Phonorecords IV is theoretically to begin in 2022.