Artist Rights Alliances Urges Copyright Office to Look Beyond Music Business For Unclaimed Royalties Best Practices
“This Best Practices study must not be limited to music industry experiences and stakeholders.”
Washington, D.C. — The Artist Rights Alliance (ARA), an artist-run, nonprofit fighting for songwriters and musicians in the modern music economy, filed comments today in response to the US Copyright Office’s Notice of Inquiry on Unclaimed Royalties.
ARA was instrumental in devising the idea of a Best Practices study for unclaimed royalties during the Music Modernization Act legislative process. But its comments today question whether the office is following the statutory command to conduct a “multidisciplinary” study that looks beyond the music business for input and ideas. ARA urged the Office to broaden the scope of its inquiry and seek expertise on the most effective ways to find and reach rightsholders and people owed money from non-music industries, the class action bar, and government offices with expertise in communicating to the public about their rights and opportunities.
ARA’s letter cites discussion of this from its Board Members Rosanne Cash and Ivan Barias at the Copyright Office’s December Kickoff meeting and explains why this expanded effort is so vital:
A narrow focus on music industry practices for finding owners of Black Box royalties runs too high a risk of simply elevating and repeating the mistakes that brought us here. Of assuming that the burden can be left on songwriters and creators to identify and jump through all the right hoops since, after all, they’re the ones with the most at stake. And of giving too easy an out to the highly resourced administrative experts who are, in fact, best placed to solve the problem.
ARA’s full submission can be read below.
More information about the Copyright Office’s Unclaimed Royalties study can be found here.
US Copyright Office Unclaimed Royalties Study
Notice of Inquiry
Docket № 2019–6
Submission of the Artist Rights Alliance
August 3, 2020
The Artist Rights Alliance is an alliance of working musicians, performers, and songwriters fighting for a healthy creative economy and fair treatment for all creators in the digital world. We work to defend and protect artists, guided by our Artists’ Bill of Rights, which outlines fundamental principles for today’s music economy.
During the legislative process that resulted in the Music Modernization Act, ARA was one of the most active voices shining a spotlight on the problem of unclaimed royalties. We engaged extensively on questions surrounding the process for allocating unmatched “Black Box” funds that had accumulated prior to the passage of the MMA as well the obligation to make best efforts to match future royalties that would be placed on the MLC going forward and the time available for it to do so.
As part of that effort, in partnership with Music Answers, we originally suggested and advocated for the addition to the Senate bill of “a requirement to study and follow best practices in order to find the proper owners of unclaimed royalties” which ultimately set in motion this Notice of Inquiry.
We are grateful for the Copyright Office’s robust effort to satisfy that statutory requirement, and for the careful consideration the Office is clearly giving this problem. For this reason, our comments at this time are limited. We write to make a single point, which fits under Notice of Inquiry Topic 18 — “pertinent issues not addressed above.”
Need to Look Beyond Music Ecosystem for Best Practices on Payment Notifications and Outreach
We are impressed by the extensive effort you have made to survey the music ecosystem and bring in all relevant industry stakeholders and perspectives.
The December 6, 2019, Kickoff Symposium featured experts and leaders covering the entire landscape of licensing, servicing, PROs, publishing, labels, technologists, standards-setting, registration, and more, including ARA’s Erin McAnally, Ivan Barias,[*] and Rosanne Cash. It clearly laid a strong foundation for this effort, and we thank the Office for the opportunity to participate.
Susan Butler’s study on global Collective Management Organizations provides an even broader look at practices, challenges, and pitfalls in royalty collection and payment across the music business worldwide. That, too, is vital.
And we have no doubt that this notice and comment process will deliver a wealth of information, ideas, and alternatives from the entire community of music industry stakeholders.
In our view, however, this Best Practices study must not be limited to music industry experiences and stakeholders.
The problem of finding potential claimants to money or rightsholders of different kinds is not unique to music royalty collection. Nor is the process of basic “know your rights” outreach and education uncommon.
Class action litigation, mass claims settlement and administration, jury service, and voter registration outreach all have well-developed practices and processes to find and communicate with people who may or may not know of their rights and obligations. Other broad outreach challenges such as the US Census, Tribal registration, and enrollment, or allocation of dividend payments under the Alaska Permanent Fund, may all have relevant lessons. Undoubtedly there are even better analogues out there beyond the narrow world of music.
We raised this precise concern during the consideration of the MMA. Early in the Senate process, we wrote the Chair and Ranking Member of the Senate Judiciary Committee urging the Committee to amend the bill to include this study and explicitly explaining the need for a broad focus:
We suggest that the Copyright Office conduct a multidisciplinary study of the best practices for finding people who are owed money. This challenge exists not only with regard to royalties, but unclaimed government monies, class action settlements, and in many other situations. We suggest the bill require the collective to follow those best practices at the conclusion of the study.[†]
That recommendation ultimately led to the MMA’s direction that the Office undertake this study, including the specific guidance that it include “consultation with the Comptroller General of the United States, and after soliciting and reviewing comments and relevant information from music industry participants and other interested parties” — statutory recognition that the Office was expected to gather learnings about identifying rightsholders and distributing unclaimed monies from non-music sources.[‡]
At the core of our concern is the risk that the MLC’s royalty matching processes and procedures will ultimately place too great a burden on individual songwriters and publishers. The idea at the Kickoff Symposium that “getting the data correct up front is the most important thing” and the division of challenges into “technology” problems and “people” problems could, if taken too far, lead to what would be in our view an undue focus on songwriter data entry that pushes too much responsibility too far down the chain.
Our Board Members Ivan Barias and Rosanne Cash identified the critical problem with this imbalanced approach at the Symposium.[§]
Mr. Barias stressed that MLC outreach needs to meet artists where they are:
Most artists that I interact with are really attuned to a digitized, on-the-go mentality. They’re untethered from laptops and desktops, and everything they do, they do on their phones. So, I think when you talk about creating a portal, it has to be something that is really attuned to how creators are creating. And it has to be something that’s nimble. Anything encumbered with a lot of details, or anything that could make them feel that this is too academic, or too administrative because, quite frankly, a lot of them are wearing many hats, and an administrative hat is the one you like the least.
While Mr. Barias’ comments were focused on the basic operations of the MLC portal here, the point applies to the broader issue of Black Box outreach and where the burden ultimately should lie. In our view, given the practical realities of different stakeholders, it is vital to develop systems and an overall approach that incentivizes the repeat players with expertise and resources — digital services, PROs, labels, publishers, and the MLC itself — to carry as much of the load as possible. As Mr. Barias explained: “[P]ut the onus back on everyone else, all of the stakeholders, to help alleviate the stress the artist is feeling, or the creators are feeling, when they have to fend for themselves out here.”
Ms. Cash made the same point: “[T]he onus shouldn’t be entirely on the songwriter to know that they have money and how to collect it. I mean it’s a completely obtuse, labyrinthine kind of process to find it. And not everybody . . . has a team of lawyers who can keep looking.”
A narrow focus on music industry practices for finding owners of Black Box royalties runs too high a risk of simply elevating and repeating the mistakes that brought us here. Of assuming that the burden can be left on songwriters and creators to identify and jump through all the right hoops since, after all, they’re the ones with the most at stake. And of giving too easy an out to the highly resourced administrative experts who are, in fact, best placed to solve the problem.
We urge the Copyright Office to conduct a broad, cross-industry, multidisciplinary, creative and open-ended study that actively seeks a path forward on unmatched royalties designed to vindicate songwriter rights and ensure they are paid everything they have earned.
[*] Mr. Barias joined the ARA Executive Board in July 2020.
[†] Content Creators Coalition Letter to Chairman Grassley and Ranking Member Feinstein, May 14, 2018 (emphasis added). (ARA was then known as the Content Creators Coalition).
[‡] Orrin G. Hatch — Bob Goodlatte Music Modernization Act §102(f), Public Law 115–264, sec. 102(f), 132 Stat. at 3722–23.
[§] All quotations are from the Official Transcript of the Kickoff Symposium (December 6, 2019).
