Clear Channel's plan to stick it to independent artists

by Justin Juvenal, Future of Music Coalition

You remember several years ago, in 2005, former Attorney General, now New York Governor, Eliot Spitzer caught several major labels and major radio companies with hands in each others cookie jars engaging in payola -- receiving payments from record companies to play certain records?* Sure you do, his investigation garnered national headlines and resulted in fines and penalties from several major labels that exceeded $30 million.

Earlier this year, the Federal Communications Commission joined the fight announcing a settlement with Clear Channel and three other major radio networks after an investigation into the same payola allegations raised by Spitzer’s investigation.

As part of the settlement with the FCC, the radio networks agreed, among other conditions, to air 4,200 hours of local and independent music on their stations. This meant that the talented artists that had long been excluded from the airwaves in favor of payola driven play lists were finally getting a small bone.

(FMC never understood the logic that playing popular indie bands like the Shins and Arcade Fire on the radio was any kind of penalty…but heck, 4,200 hours of good music on the radio is better than none so we weren’t complaining.)

It turns out, we should have been. Recent revelations show that Clear Channel has decided to use it’s olive branch as a cudgel to force local and independent artists to give up hard won performance royalties as a condition for consideration for play. (Hear the story on NPR: http://www.npr.org/templates/story/story.php?storyId=11250011).

Per the settlement, the broadcaster set up an online application for local and independent artists to submit their music for airplay on each of its stations. The applications are on a web page attached to each Clear Channel station web site (i.e., www.dc101.com/cc-common/artist_submission.)

The application requires the artist to approve a licensing agreement that (oops) does away with his or her digital performance right. In other words, Clear Channel is asking the artists to sign away their right to get paid a royalty just to allow Clear Channel to consider playing their music.

The move also flies in the face of the "Rules of Engagement" the broadcasters agreed to as part of the payola settlement, which include the following provision: "Radio shall not ask for or expect, either directly or indirectly, any quid pro quo to play music."

How is Clear Channel showing contrition for allegedly engaging in an illegal practice?

It isn't.

“This is outrageous,” said FMC Executive Director Jenny Toomey. “This is like the fox getting caught in the hen house a second time and arguing that he shouldn’t get in trouble because he was leaving the hens alone…he was just eating all their eggs.”

A further irony is that Clear Channel’s move to require artists to sign away their performance rights is kind of redundant. In the United States, the commercial broadcasters have managed to avoid paying performance royalties for over the air broadcast of music. This means that when a song is played on the radio, only the songwriter is paid whereas in 75 other countries both the songwriter and the performer are paid.

More outrageously, in 1995, when the Digital Performance Act was passed establishing a performance royalty for digital radio The National Association of Broadcasters, the lobby group for the radio companies, successfully negotiated an exemption from having to pay it on H.D. radio streams. That’s right, the richest, largest and most powerful broadcasters -- including Clear Channel -- secured an exemption for themselves. Other digital broadcasters such as Live365, Sirius and XM pay the royalty.

You may wonder why Clear Channel is asking artists to sign away rights they normally don’t have to pay because of their already negotiated exemptions. Well it may just be because Clear Channel’s move comes as strong momentum is developing in the artist community to demand that radio broadcasters come in line with the rest of the world and finally pay a public performance royalty for terrestrial and digital radio.

The effort to extend the public performance right to over the air broadcasts is going to be a huge struggle, but there is broad consensus in both the artist and the technology communities that the digital performance exemption that the broadcasters enjoy is patently unfair. In other words, if the digital performance right exists, everyone should pay it, particularly the wealthy broadcasters.

Forcing artists to sign away their rights in an application document is just one of the many ways that Clear Channel is helping the artist community demonstrate just how greedy big radio has become.

Now why is it that you can’t afford a performance right again?

article originally published at http://futureofmusiccoalition.blogspot.com/2007/06/low-power-radio-bill-drops-as....

The media's job is to interest the public in the public interest. -John Dewey