Know your rights: fair payments (for session musicians too)

 

Musicians are survival artists. It’s incredible to see, how they keep their careers running against all odds, even if that entails taking on three jobs at a time. And once the music industry takes notice, artists are often completely and utterly at its mercy. Non-disclosure agreements leave artists in the dark about the terms of usage of their own (!!!) music, labels love to apply old-school contract terms that don’t seem to make a difference between digital and physical, and if you don’t do your homework as an artist, you’ll probably be stolen blind.

And that’s only talking about the performing artists, the ones in the foreground of a recording. Session musicians, who often times aren’t an inherent part of a band but contribute just as much, are easily forgotten. Most of the time they’ll receive a flat fee for their time in the studio, that’s it. Or that’s what you’d think. In most countries, however, there’s the right to equitable remuneration. Performing artists as well as session musicians who are part of a recording are eligible for it. But money-grubbing labels wouldn’t be money-grubbing labels if the didn’t try to snatch that piece of the pie as well.

The crown jewel of performer rights

The right to equitable remuneration came out of a 1996 EU directive, which stated that performers on a recording should receive an equitable remuneration through a collecting society, when that recording is played on the radio (not just radio, but that’s the most important factor by far. We’ll get to why streaming isn’t treaded like radio later). This means that all musicians earn more if the track is successful. Equitable remuneration can thus be seen as a profit-sharing agreement.

We spoke with Horace Trubridge of the Musicians’ Union in the UK, an expert in the field of equitable remuneration and a musician himself: “The most exciting thing about this new right is that it cannot be assigned to a third party. So the record company may take royalties from streams, downloads and other sales to recoup the advance it paid to an artist, but it can’t take any of the money that you get from having that recording played on the radio. That goes directly to you.”

Fair remuneration is a matter of interpretation of course. The exact rules differ from country to country. In the UK for instance, 50 per cent of royalties go to the rights holder, the label in most cases. The other 50 per cent go directly to the performing artists. Says Trubridge: “For the first time ever, performers had an income stream apart from, say, live-work. The record company couldn’t actually [lay hands on it] and say, ‘we’ll take that until you paid back your debt to us.’ That’s why we think it’s the crown jewel of the performer’s rights.”

In the UK the PPL administers the rights of performing artists, in Germany it’s the GVL, in Switzerland it’s Swissperform. “But of course, with the record companies, if they were allowed to collect the money that PPL pays to performers, then they would take it all, and they wouldn’t pay you anything until such times you paid back the money they’ve spent on you. And that is the crucial thing, because I’ve seen a lot of artists and bands, who people have heard of, and they’ve come to me and they said, ‘we’re penniless, we’ve got no money. The only way we can earn any money is by going out and doing gigs, because our record company tells us, we haven’t paid back all the money we owe them. And that was a constant problem for musicians up until the point where this new right came in and was implemented in the UK.”

 

50 quid for the bass line on Walk On The Wild Side

As mentioned above, session musicians are entitled to equitable remuneration too. “Herbie Flowers, for instance, who plays the bass on Walk On The Wild Side, saw a session fee of about 50 quid when he played that fantastic bass line and nothing else. No matter how big that record got, he got nothing else, until this new right came in. That record gets played on the radio a lot, so he now gets money from PPL, a constant stream of income, which, I think, is how it should be”, Trubridge explains.

The extension on the length of the copyright of a sound recording – in German speaking territories referred to as neighbouring rights – from 50 to 70 years has also helped the session musicians. “They’re too old to actually get gigs anymore, and so they’re reliant on this stream of money”, says Trubridge. Before the right to equitable remuneration, musicians who had become too old to play live-shows, wouldn’t have received anymore income. Hopefully this will take away your fear of aging.

No equitable remuneration for streams and downloads

Amazingly enough, streaming and downloads are exempt from the right to equitable remuneration – thanks to a legal ruse, defining these forms of music consumption as different from, say, radio. While radio is actively communicating music to the public, streaming and downloads merely make it available to the public. So while radio exploits the communication control of the artist, streaming and downloads exploit the making available control (more on that in the report Dissecting the Digital Dollar).

That’s all well and good, but how one would infer that performing artist shouldn’t receive equitable remuneration from that fact can be questioned. “Performers are seeing very, very little of that [streaming] money [as it is]. We believe that streaming is just a modern sophisticated version of radio”, Trubridge concludes.

All music services where users can decide for themselves when and where they want to listen to music, fall in the category of “making available”. Many listeners, however, are using streaming services exactly like radio. Even in those cases the Performers won’t receive any equitable remuneration in the sense of the EU directive. All money ends up with the label first.

Treat artists fairly

There are two ways of changing that. Either streaming is given the status of radio, which would mean both form exploit the same communication to the public control. The other option would be to turn the “making available” control into an equitable remuneration right. However then you’d have the problem that the right to equitable remuneration cannot be assigned to a third party, as opposed to the “making available” control, which is a so-called exclusive right that can be assigned to a third party.

Horace Trubridge thinks it should be both, “an equitable remuneration right and an exclusive right. For the foreseeable future, record companies are going to have to rely on income from streaming services to fund their operations. If you just made it an equitable remuneration right then that’s taking away almost all their income. If you say, it should be half an equitable remuneration right but the other side is an exclusive right, that means that they can then recoup from the artists for the exclusive side of it. If you just made it equitable remuneration they’d have no way of recouping their investment.”

And he adds: “I’m not going to weep for the record companies, I’m never going to do that. But we want record companies to survive, we just want them to change their business models and be fairer to performers.”

So to all the performers out there: you might want to be thinking about joining your local performance rights organization. If you’ve played on a successful record, it will certainly pay off.
 

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