Music Modernization Act May Clear Hurdle After Reaching 'Handshake Deal' With Senator Wyden: Exclusive

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U.S. Capitol Building in Washington DC on March 24, 2018.

Proponents of the Music Modernization Act and Sen. Ron Wyden (D-Ore.) have reached a “handshake” deal, according to sources, which moves the landmark copyright legislation one step closer to passage.

In May, Wyden threw a stumbling block into the proceedings by introducing an alternative bill shortly after the MMA passed the House and had been introduced into the Senate. His bill directly conflicted with the CLASSICS portion of the MMA that deals with pre-1972 recordings.

As the MMA moved toward a senate vote, the bill’s main advocates, Songwriters of North America, Nashville Songwriters Association International and National Music Publishers Association, relied on the Recording Industry Assn. of America to help navigate dealing with Wyden.

On Tuesday night (Aug. 28), Wyden and Sen. Chris Coons (D-Del.), who has been supportive of the MMA and wants it to pass as is, reached a handshake agreement. Though details are unclear, the new bill is expected to be a compromise between Wyden’s Accessibility for Curators, Creators, Educators, Scholars, and Society (ACCESS) to Recordings Act bill and the MMA’s CLASSICS act.

"We understand that Sen. Coons and Sen. Wyden have had very constructive conversations about a compromise," says RIAA spokesman Jonathan Lamy. "There is still work to do, but we are cautiously optimistic.”

‘Once again, the songwriters have engaged the music creator army in a fight for their livelihoods,” said SONA co-executive director Kay Hanley. “We are hopeful that Senator Wyden will now do the right thing for music creators in his state and around the country.”

Wyden’s ACCESS act essentially calls for federalizing recordings made before 1972, which are currently covered under state law. This would allow rights holders and performers to collect royalties when their works are streamed online, which they currently can’t do.

Wyden’s bill contrasts with the MMA’s bill, which would grant them this right without otherwise changing the way they’re covered under state law.

While the relevant provision of the Music Modernization Act would let rights holders of pre-1972 recordings collect money until 2067, Wyden’s bill would have these acts enter the public domain sooner: either 95 years after they were released or 120 years after they were recorded, whichever comes first. The most valuable pre-1972 recordings, made in the 1960s and very early 1970s, would begin doing so in 2055.

Wyden’s bill also calls for all pre-1972 recordings to lose all of the protection they currently have under state law. Under current law -- and the MMA wouldn’t change this -- all state law protection expires no later than 2067, although in some jurisdictions it could run out sooner. It also says that works recorded between 1923 and 1930 will enter the public domain if they’re not used, and it offers a three-year window from liability for statutory damages in some cases. 

While the advocacy groups continued to pressure Wyden, songwriters ratcheted up their pressure on the Senator to drop the ACCESS bill by taking the fight directly to Oregon. Beginning Monday (Aug. 27), billboards went up in Portland and Salem that read “Senator Wyden, Why do you hate music? Oregonians: Text MUSIC to 225568 #MusicModernizationAct."  The ads were paid for by a gofundme campaign coordinated by Songwriters of North America and songwriter Ross Golan.

“The future of the music industry rests on the shoulders of musicians. Over the past month, songwriters and artists have united for the first time in the history of the music business,” said Golan who has rallied thousands of creators to the cause. “The music modernization act will help us create a middle class of writers and artists like we haven’t seen in years. The time for change is now”

Others are optimistic that a deal can be struck but caution there is still work to do. A source familiar with the negotiations warns that the deal is not closed because the details of the compromise haven't all been hammered out, saying "the devil is in the details.”

But even when and if this handshake deal is signed, proponents of the MMA still has one more obstacle to overcome: SiriusXM is still lobbying against the bill because it doesn't require terrestrial radio to pay royalties on pre-1972 recordings. Sirius says it wants to be on a level playing field with terrestrial radio. In an Aug. 23  guest op-ed piece for Billboard, SiriusXM CEO Jim Meyer said, “our position on the CLASSICS Act (now part of the MMA) has been clear since its introduction -- it's bad public policy to make a royalty obligation distinction between terrestrial radio and satellite radio. Radio is radio. If SiriusXM and other "audio services" pay pre-'72 royalties, then terrestrial radio should be required to do the same. The same is true for post-'72 royalties.”

Sirius’s position has come under fire from creators: ”Very simply put, sound recordings created before February 15, 1972 are covered by state law, while sound recordings made after that date are covered by Federal law,” says Dina LaPolt, attorney advisor to SONA. “Sirius has used this distinction to wrongly argue that they do not have to pay for pre-72 sound recordings which deny our oldest legacy recording artists, like Etta James and Aretha Franklin, the royalties they deserved and needed in their later years of life. They should be ashamed of themselves.”

Whether the MMA proponents try to find away to appease Sirius -- as they did with Blackstone-owned SESAC/Harry Fox Agency, first or now with Sen. Wyden; or choose to simply try to out lobby Sirius remains to be seen.

Calls to Sen. Wyden’s and Sen. Coon’s offices were not immediately returned. 

Additional reporting by Robert Levine and Colin Stutz