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Based on a True Story: Why the Writers Guild of America Strike Should Reassess the Rights of Artists and Songwriters
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THERE are a lot of things…
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that are happening in Hollywood that are not being mirrored in the music industry. I always feel like there is a link and generations-long bond and association between music and film. There is definite crossover and, when it comes to talent, there are various different layers and levels. In the film industry, you have actors, directors, producers, executive, and numerous other roles. Music too has its songwriters, producers, artists, engineers, and many others who make amazing songs and albums come together. Equal and fair pay is a sore subject in music at the moment! It is a big issue in America too. The 2023 Writers Guild of America strike is not a new thing: there have been writers strikes in Hollywood in the past. There are protest happening and shows being put on hold. This strike looks like it could last a while. I have been intrigued by a recent feature in Pitchfork, which asks when artists will get their Hollywood strike moment. There are some interesting extracts that made me think:
“In today’s music industry, the distinctions between songwriter and musician are even blurrier than they were in the 1980s. Independent contractors are excluded from the protections offered by the National Labor Relations Act (NLRA) of 1935. Labor lawyer Leo Gertner explains that the independent contractor classification was carved out in the 1947 Taft-Hartley amendments to the NLRA, which also banned solidarity and wildcat strikes and passed right-to-work laws. “A lot of this stuff is just anachronistic,” says Gertner. “In the modern economy, and especially in industries like music where technology has played a huge role in atomizing the workers and allowing people to do little pieces of work and then get paid very little, I think the law has lost sight of that.”
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Guitarist Marc Ribot, who has been an AFM member since 1977, notes that it’s not just workers that have been atomized. When the AFM won in the 1940s, they negotiated contracts with major labels guaranteeing fair pay for all member musicians that are still in place today, protecting recording artists on those labels. But for decades, those companies have been outsourcing production and working relationships to smaller indie labels, which aren’t subject to union contract terms. Another Taft-Hartley piece, which prevents workers from taking organized action against anyone but their immediate employer, insulates the wealthiest labels from financial responsibility. “You can’t go after the money anymore,” says Ribot.
Phillip Golub, a jazz musician and member of the Music Workers Alliance, founded in 2019, agrees. “Ford, GM, and Chrysler figured out that if they bought their parts from a third-party parts manufacturer that was a small company, then they wouldn’t have to deal with the union in their shop,” says Golub. “The major labels did the same exact thing.”
Most musicians today would likely be classified, like the songwriters, as independent contractors. That weakens their organizational power under the NLRA, but because antitrust laws consider organized rate demands from independent contractors to be price-fixing, it also means that any coordinated action targeted at better pay could invite a lawsuit. After music trade groups tried to warn musicians about unfair contracts from Sirius XM in 2011, the radio giant sued the groups on antitrust grounds, alleging that they were interfering with free market competition”.
I think it opens up a wider conversation about the value and worth of songwriters, artists and producers. Even if songwriters have greater security, representation and, I guess, compensation than artists, I still think that writers and producers are overlooked. Similar to Hollywood and how there is focus on actors and directors, how much kudos do we give to those who produce the films and write the script?! Similarly, in music, the artist gets all the adulation. Aside from the GRAMMYs having categories for writers and producers, most award ceremonies only recognise the artist, songs and album – whereas songwriters and producers get overlooked. Whereas huge artists like Harry Styles, Taylor Swift, and Ed Sheeran are generating quite a bit of revenue from massive album sales and streaming numbers, I have always been curious how much money goes to songwriters and producers. I think Swift is more autonomous in regards the songwriter, but there are plenty of others who help make these massive artists successes. How much are they earning from sales and streaming? Are they being recognised as much as they should? Do they have rights and a union behind them if they want to strike? It is quite a complex area, so I am not going to pretend that I know all of the laws and situation. I was compelled by the headline Pitchfork put out regarding songwriters and why they can’t strike….just yet. The article ends with this:
“Even without legal and policy fixes, organizers say the emergence of strong organizing groups like the Music Workers Alliance and UMAW suggest that musicians are ready to fight again. Years ago, Ribot opined that if unions don’t stop the siphoning of profits by tech and streaming companies, rank and file music workers would revolt, within or without the constraints of labor classifications. “That rank and file revolt,” says Ribot, “is happening right now”.
IN THIS PHOTO: Taylor Swift/PHOTO CREDIT: Getty Images
I think, now more than ever, it is clear that artists, songwriters and producers are undervalued and underpaid. I don’t think artists, no matter how big or small, could afford to strike. It would backfire, and I am not sure whether it would lead to immediate change. If writers in America are being seen as rank and file by some, it is clear their striking is impacting shows. Their importance cannot be understated! I wonder whether the current striker will leads to reform and new terms - or, if nothing is agreed, Hollywood will start to crumble. Whether their rights and value will be put at the forefront. From working hours, pay and accreditation, there does need to be action! Writers in America are not being paid fairly. This TODAY article goes into more detail:
“Writers are also fighting for higher residual payments, or the payments writers receive when shows they have worked on are re-released, whether as reruns or in syndication.
According to the WGA, half of all writers now work in streaming, which pays fewer residuals for new and pre-existing shows.
Valentina Garza, a producer and writer who has worked on shows including “Wednesday,” “Only Murders in the Building” and “Jane the Virgin,” shared one stark example on Twitter of how low residual payments can be on streaming services.
“In case anyone’s wondering why the WGA is on strike, this is my streaming residual check for two episodes of 'Jane the Virgin,'” she tweeted, sharing a photo of a check made out for three cents. “One for .01 another for .02. I think the streamers can do better.”
In the face of these industry shifts, the union is proposing regulations regarding artificial intelligence, pay structures to make up for the elimination of residuals, preservation of the writers' room, minimum pay for streaming, and guaranteed number of on-the-week jobs for writers, per a WGA document.
The Guild's proposals, according to the WGA, would cost studios $429 million per year. Studios' counterproposals were $86 million”.
I am thinking about music and songwriters and artists. Times are hard for most artists. In terms of how much they are compensated and the rights they have. With the rise of AI threatening the future of music in some ways – artificial intelligence able to replicate artists’ voice -, it must worry writers. Even if AI cannot replace a human voice and style, songwriter could become more machine-fed and generated. I think that songwriters are enormously important! Music has not really had its #MeToo movement (whereas Hollywood has). Will songwriters here and in the U.S. ever strike? It is clear that, when it comes to streaming sites and the low payment artist are given, there will be some form of action and rebellion. Artists are touring harder than ever just to break even. For songwriters, things are quite bleak – especially when it comes to royalties from streaming. Variety wrote about this in a feature from March:
“If you love songwriters and hate the many ways songwriters are underpaid, paid slowly, or not paid at all, please read the following: There is between $700-$800 million of mechanical-royalty income related to songs that were streamed between 2018 and 2022 that has not been paid — and there is no guidance on when it will.
Why? Eyes down.
The Mechanical Licensing Collective (“MLC”) is an organization responsible for receiving mechanical royalties from streaming services, matching the royalties for songs to the appropriate songwriters, and distributing that income to songwriters and publishing companies accordingly. The MLC is currently holding $373 million dollars in mechanical royalty income for songs streamed between 2018 and 2022.
PHOTO CREDIT: Moose Photos/Pexels
In simplest terms, the MLC can’t distribute this money because the mechanical royalty rate for that period still has not been finalized.
The statutory rate for mechanical royalties is set every five years by the Copyright Royalty Board (“CRB”). This rate hadn’t moved very much in decades; however, in a 2018 proceeding before the CRB that is known (anachronistically) as Phonorecords III, songwriters and publishers finally received an increase to the compulsory mechanical royalty rate, from 11.4% to 15.1%, for the 2018-2022 period. Four streaming services appealed this decision, causing a long and expensive back-and-forth in the courts. Finally, in July of 2022, the increased rate was preliminarily upheld — the decision was heralded as a long-awaited win to songwriters. In addition to the royalties held by the MLC, if these preliminary rate increases are finalized, streaming services will owe hundreds of millions in royalty payments to songwriters for those past periods.
In total, finalizing the Phonorecords III rates could lead to additional payments of up to $700-800 million in royalties.
Unfortunately, it has been a hollow victory for songwriters thus far. For the monies to be released, the CRB must publish a final determination on the mechanical royalty rate for the 2018 to 2022 period. Once it is set, streaming services will have six months to report and pay the MLC additional royalty payments based on the increased rate. The CRB, presumably dealing with other important matters, has still not issued its final determination. Obviously, this is frustrating, but it is especially painful in a time of economic uncertainty and heightened inflation. Mechanical royalties are a critical source of revenue for songwriters, particularly as streaming has become the dominant format for music distribution.
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Failure to receive the full royalties due for songs streamed between 2018 and 2022 negatively impacts every aspect of the songwriting economy. Songwriters rely on mechanical royalty income to support themselves and their families and ensure they can continue to create music for a living and build their careers. Music publishers use this revenue to sign new songwriters, acquire music catalogs, and provide advances to creators. These layered uncertainties impacts proper compensation and investment in songwriters’ creative works, futures, and the entire industry”.
I hope that there is negotiation and satisfactory resolution for writers striking in Hollywood and other parts of the U.S. Their value and key is clear - and yet it is not being compensated fairly. I think the same is fair for artists and producers. But songwriters are near the bottom of the pile when it comes to payment and fair treatment. There have not really been any strikes in the music industry. Maybe the risks are too high. I think, inspired by writers' strike, songwriters should strike. Maybe now is not the perfect time but, unless there is change and proper recognition, it might come to that! There is the risk of being sued by companies like Spotify. I do feel that songwriters and artists should come together and demand better conditions and payment. The more technology atomises and demonetises artists and songwriters, the worse it will be for the industry – and that will have long-lasting impact across the industry. In music, as it will be the case in Hollywood soon enough, I hope that the Writers Guild of America (WGA) actions, protest and passion…
IN THIS PHOTO: A picketer at Paramount Studios in Los Angeles carries a sign with references to the television shows Grey's Anatomy, Abbott Elementary and Succession/PHOTO CREDIT: Valerie Macon/AFP via Getty Images
STRIKES a chord!