With High Stakes Music Reforms Looming, Is It Time For a Recording Artists Coalition 2.0? (Guest Post)

Courtesy of SESAC
Jay Cooper

Nineteen years ago, I was fortunate to be the attorney for a newly formed organization called the Recording Artist Coalition (RAC). The principal moving forces behind that venture were Don Henley, Sheryl Crow and Irving Azoff. It was born out of an attempt by the RIAA to amend the Copyright Act to include a provision specifying that a sound recording could be considered a work for hire, the result of which would mean that the original copyright grant would not be terminable.

Under the law as it now exists, there is a right of the recording artist under §203 to terminate the original grant of copyright 35 years after the date of publication and under §304, 56 years after the date of copyright. RAC took an aggressive position in front of Congress, with important support from the Recording Academy, AFM and AFTRA, opposing the new amendment, which was actually inserted into the totally unrelated 1,000-page Satellite Home Viewer Improvement Act (yes, that is correct) at the behest of the RIAA. After some negotiation between RAC and the RIAA under the watchful eyes and direction of Congressmen Howard Berman and Howard Coble, that amendment was removed.

​RAC then went on to other battles specifically on behalf of featured recording artist issues. After a few years, RAC was absorbed into the Recording Academy where its agenda has been diversified.

Here we are in 2018 where featured recording artists are facing many issues in the industry that are unique to them alone: the need of a performance right for recording artists from AM/FM radio, the continuing battle with labels challenging the artist’s termination rights (despite the law), and the erosion of artist royalties. I believe it is now time for RAC 2.0 to be formed as an additional voice alongside AFM, SAG/AFTRA, Sound Exchange and the Recording Academy so that the world hears directly from the very artists that are affected by the enormous challenges of technology, the challenges to their termination rights, the erosion of royalties, or simply the non-payment or routine underpayment of royalties.

Just as ASCAP, BMI, Global Music Rights and SESAC fight on behalf of songwriters and publishers, alongside other voices like the Nashville Songwriters Association International (NSAI), Songwriters of North America (SONA), Society of Composers and Lyricists (SCL) and National Music Publishers Association (NMPA), we need a RAC 2.0 to make its individual case alongside AFM, SAG/AFTRA, Sound Exchange, and the Recording Academy, where RAC 2.0's issues may be different or unique, and in some cases, the same.

In the UK, the Featured Artists Coalition is an advocacy group with a Board of Directors that includes members of Pink Floyd, Radiohead and Annie Lennox, among others. They work tirelessly on behalf of all featured recording artists. We need the same level of commitment from featured recording artists here in the US, the world’s largest music market.

There appears to be substantial movement forward on behalf of the Music Modernization Act, which will benefit principally songwriters and publishers, deservedly so, and which we support. Also pending is the Classics Act benefiting older recording artists involving pre-72 recordings and the AMP Act benefiting Producers and Engineers for areas not including terrestrial radio.

Not included in any of these pending music related bills is a major element of the Fair Play Fair Pay Act, the right of the recording artists, both featured and non-featured, to be paid for the performance of their records on terrestrial radio. This omission is literally costing American recording artists hundreds of millions of dollars yearly in lost income, since reciprocal performance royalties cannot be collected from foreign territories without a similar right in the US. It was not considered to be part of the Music Modernization Act because some parties feared the National Association of Broadcasters would oppose the entire bill.

Please note, in virtually every civilized country in the world, the recording artist receives royalties for the performance of their recordings on radio, as well as in clubs and other venues.

Notable exceptions are North Korea, Iran and the U.S.

It is time for a re-formed and re-vitalized RAC 2.0 to lead the effort in fighting for passage of a bill to rectify this decades-long injustice, and to continually be the direct voice of the recording artist community moving forward in these turbulent times.

Jay Cooper is founder and shareholder of the West Coast Entertainment Practice of Greenberg Traurig, LLP law firm, which focuses on the music industry, motion picture, television, Internet, multi-media and intellectual property issues. In 2017, SESAC honored Cooper with the SESAC Visionary Award at its annual Film & Television Composers' Awards.