Music royalties and Pandora’s box
It is one of the oldest and thorniest questions of the digital music era: How much should artists and musicians be compensated for the Internet broadcast of their songs? And who gets to decide that rate?
You might think in the nearly two decades since music first began streaming over the Internet that some kind of consensus about paying artists would have emerged. But about the only thing most Internet radio stakeholders can agree on is that the current system makes no sense: Internet radio providers pay vastly different rates than their terrestrial, cable and satellite brethren, and even sometimes each other. Also, even a single company may pay a per-song fee in some cases, and a percentage of its revenues in others. Beyond that, there is vast disagreement, with the political fault lines forming an unusual pattern.
The business stakes of this battle flared up again this week, when the New York-based indie musician Blake Morgan picked a public fight with Internet radio giant Pandora. Morgan had received a feel-good form letter from Pandora founder Tim Westergren that exhorted musicians “to change the course of the industry in a direction that will be far more inclusive and empowering for independent musicians.” In response, Morgan said the “idea that Pandora is intimately interested in the success of independent artists rings quite hollow.” Specifically, Morgan noted that his songs were played nearly 28,000 times on Pandora in the third quarter of 2012, and that he received $1.62 from the company. (As Billboard notes, that is far less than the statutory rate to which Morgan is theoretically entitled.)
In an interview, Morgan said that it was “very dishonest for Pandora” to claim to empower musicians when its royalty payments are so low, and indeed seek to lower them further. Certainly Pandora’s royalty rates are critical to the health of its business. As my Reuters colleague Daniel Indiviglio has pointed out, in 2011 Pandora’s royalties-to-revenue ratio was 54 percent; Sirius XM’s was 8 percent. In an otherwise bullish stock environment, Pandora’s stock tumbled conspicuously on Tuesday when Morgan’s correspondence with Westergren was widely aired, though it has since recovered.
A Pandora spokeswoman declined to comment specifically on Morgan’s charges, but said that the company is constantly in touch with more than a thousand musicians and seeks their active collaboration in setting rates.
The spat over royalties is crying out for rationalization. Currently, the Copyright Royalty Board (CRB) – a panel of judges that is part of the Library of Congress – sets the rules for royalty rates. Unlike many issues under CRB jurisdiction, however, there are next to no market inputs, as there is no functioning market for Internet radio licenses. Instead, the CRB relies on data extrapolations from other media deals that can vary from case to case. Thus, CRB rulings seem out of whack with other industry practices and are constantly changing; the dizzying cascade of contradictory and superseding regulatory rulings is summarized here.
A legislative effort to streamline the law, called the Internet Radio Fairness Act, came and fizzled last fall. The bill was heavily supported by Pandora, since it would lower their rates, and opposed by musicians and songwriters. Curiously, though, the AFL-CIO and the American Conservative Union – two groups which rarely agree on anything – also opposed the bill, supporting instead some kind of market mechanism to determine royalty rates.
Morgan’s argument is that the discrepancy between Pandora’s rates and everyone else’s should be resolved by raising the floor instead of lowering the ceiling. And during last year’s debate, Congressman Jerrold Nadler from Manhattan introduced a draft discussion bill seeking to impose a single royalty rate for all radio platforms. Nadler’s office told Reuters that it continues to support this idea, but is also waiting for the House Judiciary Committee to undertake a broader review of copyright issues – a process that will clearly take months – before introducing any formal bill.
In the meantime, artists will continue to use whatever leverage they can find to wring a higher rate out of companies like Pandora. Morgan, for his part, points to Spotify – which has only been available to U.S. listeners since 2011 – as the “oncoming good guys” who choose to give artists a bigger chunk; he claims that he makes $1 in royalties for every 200 plays on Spotify. Perhaps there is room in the Internet radio world for market competition after all.