Spotify’s Latest New Release Excuse Is Invalid [David Lowery]

Spotify and the NMPA have recently claimed that, for most new music being released, the owner is unknown. Here David Lowery looks at why this argument is implausible.

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By David Lowery from The Trichordist

The latest excuse from Spotify (which strangely is being echoed by David Israelite (NMPA CEO) in a recent interview with Dale Kawashima in Songwriter Universe) is that “most of the new music that gets released, you don’t know yet who owns it.”

Aside from being simply incorrect, this argument is simply unbelievable on its face. First of all, every record deal has what’s called a “controlled compositions” license that covers songs written or co-written by the band or individual artist, the producer, or any co-writers who write with the artists.

That same contract requires the artist to deliver songwriter credits, publisher information and often “splits” or ownership shares in order to meet their contract obligations to their label (and get paid their “backend” advance).

Artists sometimes pass that obligation on to their producers. The producers then have to get those splits and songwriter information (also called “label copy”).

If the song is not written by an artist, producer or co-writer (also called “outside writers”), most of the time the splits are also known and delivered by the artist or producer.

If the song is a cover, the splits and publisher information is usually easily findable through public databases maintained by ASCAP, BMI, SESAC or the Harry Fox Agency (“HFA”). HFA was hired by Spotify to clear the publishing on songs used by Spotify.

If there is a sample, most of the time the recording won’t be released until the samples are cleared (the infamous “legal hold” on an artist’s release).

So it is simply false to say that “most of the new music that gets released, you don’t know yet who owns it.” In fact, the opposite is true. Most of the music that gets released, you do know exactly who owns it.

Even if you strain to try to make some sense of this statement, the most you could say is that the writers may be known but the splits may not be known on a handful of new releases day and date with the release.

This is a tiny handful of songs, and even those are irrelevant when it comes to Spotify because they could easily send the required notice to each of the known writers.

It is also irrelevant for sending the “NOI” or “notice of intention to use” the song under the compulsory mechanical license. Here’s the regulations which confirms in a nutshell that “ownership” or “splits” are not required. The rules require that the notice go to “A copyright owner of the work, if known”. “A copyright owner”–not all–“A”. As in at least one. If known.

(d) Content.
(1) A Notice of Intention shall be clearly and prominently designated, at the head of the notice, as a “Notice of Intention to Obtain a Compulsory License for Making and Distributing Phonorecords,” and shall include a clear statement of the following information:
(i) The full legal name of the person or entity intending to obtain the compulsory license, together with all fictitious or assumed names used by such person or entity for the purpose of conducting the business of making and distributing phonorecords;
(ii) The telephone number, the full address, including a specific number and street name or rural route of the place of business, and an e-mail address, if available, of the person or entity intending to obtain the compulsory license, and if a business organization intends to obtain the compulsory license, the name and title of the chief executive officer, managing partner, sole proprietor or other person similarly responsible for the management of such entity. A post office box or similar designation will not be sufficient for this purpose except where it is the only address that can be used in that geographic location.
(iii) The information specified in paragraphs (d)(1)(i) and (ii) of this section for the primary entity expected to be engaged in the business of making and distributing phonorecords under the license or of authorizing such making and distribution (for example: a record company or digital music service), if an entity intending to obtain the compulsory license is a holding company, trust or other entity that is not expected to be actively engaged in the business of making and distributing phonorecords under the license or of authorizing such making and distribution;
(iv) The fiscal year of the person or entity intending to obtain the compulsory license. If that fiscal year is a calendar year, the Notice shall state that this is the case;
(v) For each nondramatic musical work embodied or intended to be embodied in phonorecords made under the compulsory license:
(A) The title of the nondramatic musical work;
(B) The name of the author or authors, if known;
(C) A copyright owner of the work, if known;
(D) The types of all phonorecord configurations already made (if any) and expected to be made under the compulsory license (for example: single disk, long-playing disk, cassette, cartridge, reel-to-reel, a digital phonorecord delivery, or a combination of them);
(E) The expected date of initial distribution of phonorecords already made (if any) or expected to be made under the compulsory license;
(F) The name of the principal recording artist or group actually engaged or expected to be engaged in rendering the performances fixed on phonorecords already made (if any) or expected to be made under the compulsory license;
(G) The catalog number or numbers, and label name or names, used or expected to be used on phonorecords already made (if any) or expected to be made under the compulsory license; and
(H) In the case of phonorecords already made (if any) under the compulsory license, the date or dates of such manufacture.

Nobody who knows anything about the real music business will give any credence to Israelite’s statement. Particularly because it’s exactly the kind of statement that infringers have been hiding behind since the Napster case that somehow we don’t know what we own.

Not true, not legally required and not helpful.

(Errata: This post first referred to the interviewer as Dean Kay instead of Dale Kawashima.)