Here we look at how the legal action (and inaction) by those in the federal government and the Department of Justice in particular has it challenging for songwriters to be paid fairly for their time time spent producing anything other than a dramatic musical.
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Guest post by David Lowery of The Trichordist
From now on that is what I intend to do.
The pop and rock song is financially dead. I will no longer waste my time and energy with this endeavor. The ability to be paid fairly for my time and effort to create non-dramatic musical works has been decimated by the federal government.
1) The DOJ Antitrust Division, flouting intent of law and constitutional limitations, has turned monopoly regulation on its head by treating songwriter licensing organizations as anti-competitive monopolies. Meanwhile they force us to license our work at below market rates to genuine-holy-shit-these-guys-are-a-danger-to-democracy information monopolies like Google and Amazon (and soon Facebook). To benefit these monopolies they force us to violate private contracts and subject us to ex post facto rule making. Meanwhile these monopolies through their trade organizations (for instance “The Mic-Coalition”) openly collude and conspire to lower rates to songwriters, Yet the DOJ antitrust division completely ignores this anti-competitive behavior. Lawyers shuttle back and forth between DOJ antitrust and Silicon Valleyand no one raises an eyebrow. It’s like the fucking Cali Cartel runs the joint. (Editor note: May I? The Mountain View Cali-fornia Cartel?)
2) The federal government through the compulsory mechanical license regime also forces us to license our songs to record labels and digital services at below market rates. These rates are fixed by the Copyright Royalty Board which is required to consider evidence of market rates. However in the last proceedings the CRB used as market rate “evidence” secret agreements between music conglomerates and digital services. The proceedings never disclosed the details of these agreements to the public. The details of these “market rates” were redacted. That’s right secret evidence was used against songwriters and they never got to examine the evidence!!!!!! WTF? What kind of fucking banana republic are we living in? Recordings of these songs are THEN distributed by record labels through the whole digital music ecosystem where we are again subject to exploitation described in #1. Thank you sir may I have another?
3) Meanwhile the federal government has failed to investigate mass violations of the compulsory licensing regimes by broadcaster and digital services; mass filings of improper and fraudulent “address unknown” notices (government documents) with the copyright office by digital services; backdated compulsory license notices and bait checks; obvious collusion and conspiracy between different music services and digital broadcasters; obviously manufactured licensing deals that then appeared as market rate evidence at Copyright Royalty Board hearings; and ham fisted attempts to distract from past conspiracies to defraud songwriters. The federal government has ignored what looks to me like several RICO conspiracy cases. Yet no one gives a shit.
Why? It couldn’t possibly have anything to do with record sums digital services spend lobbying the federal government? Surely funding academics and think tanks that used to act as checks on this abuse of power has nothing to do with it ? Or straight up funding of favorable journalism, that doesn’t have anything to do with it. Right? No these are good robber barons. Not like the old ones.
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This is not to say I won’t continue to record music. Instead of writing traditional non-dramatic pop or rock songs I will go the extra mile and create “dramatico-musical” works (think, musicals, traditional opera or rock opera). I’ve already experimented with this once. You see this sort of work is distinct under copyright law from a simple non-dramatic pop or rock song. At this point these works have managed to escape some of the usurious regulation by the federal government and crony capitalist sponsors. In particular it’s difficult to apply the compulsory mechanical license in these situations. This also provides a way around some (but not all) of the outrageous abuses of the DOJ antitrust regulations. Thus by adding a dramatic narrative, visuals, or choreography to a work, a songwriter is able to regain many of the rights taken without compensation by the federal government. And yes I do mean “takings” in the constitutional sense.
While repositioning or reimagining our musical works in this way may be a good thing, sadly, it also highlights the wild injustice to which songwriters have been subjected.
Let’s not put up with this shit anymore.
I seriously urge other performer/songwriters to investigate this course of action and consider if you won’t ultimately be better compensated by adapting this as a creative strategy.