by BAR Managing Editor Bruce Dixon

The cynically misnamed "Performance Rights" legislation will not benefit performers.  It will extract a premium from radio broadcasters, killing some, and transforming others for the worse.  It will create another piece of "intellectual property" which the recording industry is poised to benefit from at the expense of artists, radio broadcasters and the public, and legaiize payola.  And once the performance rights toll booth is established in broadcast radio, it can and will be deployed elsewhere.  HR 848 is bad news for broadcasters, bad news for artists, and bad news for almost everybody.

Black Radio and the "Performance Rights" Toll Booth

by BAR Managing Editor Bruce Dixon

Will Saving Black Radio Save Local News And Public Service?

A few weeks ago Radio One founder Cathy Hughes, echoed by Tom Joyner and dozens of other radio personalities, sounded the alarm. HR 848 they cried, a bill to make stations pay a “performance rights” fee for every song played, was a mortal threat to black radio. In a widely circulated blog post which was echo-blasted to everybody on any Radio One email list, Hughes cited black radio's stellar contributions of news, diversity and local content as reasons why African American communities should rally to protect it. She even claimed black talk and gospel were “money losing formats” as if these were public services and tithes offered out of Radio One's bottomless reservoir of corporate good will.

The laughter was pretty hard to suppress. Commentators like Paul Scott and Mark Anthony Neal ran columns titled “Should We Save Black Radio?” and “Should Black Radio Die?” to which they answered “probably not” and “maybe.” The widely known fact, as BAR's Glen Ford pointed out six years ago in “Who Killed Black Radio News” is that Radio One led the industry in purging news, public service and local content of all kinds from its airwaves in favor of cheap, syndicated, uninformed talk, mostly about celebrities and relationships. Radio One's payola-influenced playlists are indistinguishable from its white-owned black radio competitors. Perhaps to protect their audiences from too many confusing facts, Tom Joyner, Cathy Hughes and the rest of the "save black radio" posse never mention that white broadcasters, the National Association of Broadcasters in fact, are just as opposed to HR 848 as they are, for most of the same reasons.  So the truth is surely more complicated than Cathy Hughes and her posse would have us believe.

HR 848, the so-called Performance Rights Act, which Hughes says may be the death knell of black radio is sponsored by Detroit congressman John Conyers.  It has dozens of high-profile celebrity boosters. The legislation will supposedly compensate performing artists – authors, composers and copyright holders are already taken care of by other intellectual property laws – when their work is played on the radio. Putting aside for the moment the economics of radio stations, it doesn't sound like an inherently bad idea. Artistry is work, and work ought to be paid, right?

Will Revenue From the Performance Rights Act Actually Reach Performers?

The answers here are: not much and not likely.  Given the historic business practices of the industry, and the provisions of HR 848, it's safe to say artists won't see much of this money. It will be extracted from radio stations,and collected and disbursed by Sound Exchange or other representatives of the same suits who have made an industry out of stealing from artists since the dawn of time, or at least since recording business managed to make the recorded product it distributed and controlled, instead of the artists' live performances which it did not control, the music industry's main revenue stream. HR 848 also guarantees industry execs the right to rake an unspecified portion off the top for handling charges.

Section 6(1)(1)(a) of the law says that entitlement of the artist to these payments is “...in accordance with the terms of the artist’s contract,” rather than in addition to or outside of and not subject to the contract. In plain English that means a cleverly written or dishonestly administered contract can easily divert these new “performance royalties” to pockets other than those of the performers.

As Mark Anthony Neal put it:

“Record companies are simply disingenuous when they suggest that artists will benefit from the passing of HR 848, when their own business practices guarantee the average artist less than 10-percent of profits generated from the sale of their recordings and the companies will themselves take part of the proceeds generated from the collection of a “performance tax.” If the RIAA and Record companies were really so concerned with the plight of artist, they would create less exploitive relationships with artists. ”

The representatives of RIAA, the Recording Industry Association of America, clearly wrote this law for their own benefit, not that of artists.  It's no secret that CD sales, and recording industry profits have been on the downtourn for years.  The RIAA blames this on digital technologies and downloading, and it has used its lobbying muscle in Congress to pass one law after another against what it calls digital "piracy.".  According to Lawrence Lessig, RIAA has aided the Department of Justice in prosecuting 25,000 people over the last few years for downloading songs over the internet without paying license fees.  As far as anybody knows not a penny recovered has gone to artists.  Two years ago RIAA imposed a similar fee structure on internet radio, making it prohibitively expensive for many of those stations to incorporate any sort of music in their programming. The defenders of internet radio saw the handwriting on the wall; they predicted that broadcast radio would be next.  Tom Joyner, Cathy Hughes and the rest did nothing, and now the wolf is at their door.

How HR 848 Will Work in the Real World: More Payola and the Same Old Songs

In the real world, there are two economies. There's a real economy where goods and services are produced, and where wealth is created by labor of one kind or another. There is also a fake economy, a parasite on the real one comprised mostly of the FIRE sector, (finance, insurance and real estate) along with the intellectual property racket. This fake economy lives on rents, interest payments, user fees and government subsidies. Its agents are always on the lookout for places in the real economy where they can plant toll booths to extract revenue without the bother of providing any service or adding any value.

The so-called Performance Rights bill is a toll booth the recording industry wants to place in the middle of radio broadcasting. It creates a new class of “intellectual property” supposedly for the benefit of performing artists, but subject to the artist's contract, administered, and easily tapped by the record labels and their reps. The possibilities for abuse by labels and the recording industry are mind boggling, and include the outright legalization of longstanding industry practices of payola and reverse payola.  While standard fees will be set, rates are open to bargaining between broadcasters and labels who supposedly represent artists. Labels will be able to offer one station or chain of them a lower rate on the songs of preferred artists if they take less preferred ones as part of the package. Labels already pay for remotes, contest premiums, and the personal appearances of station personalities with their artists.  The "performance rights" revenue stream will be just one more channel they can adjust upward or downward in their bargaining with broadcasters.

They can offer a station or chain a lower rate for reducing the airplay of a competitor's music or scrubbing it from the playlists altogether. Labels can demand a higher compensation rate than that offered to other artists, and where they have the bargaining power, some stations can demand lower rates than other stations.  The largest chains, like Clear Channel, will be in a better bargaining position than smaller ones like Radio One.  Just as Cathy Hughes and the “save black radio” crowd are saying, smaller chains, smaller stations, and the relative few minority station owners will be disproportionately endangered.  Black radio as we know it truly is in mortal danger.

Will HR 848 Put More Money in the Pockets of Up and Coming Artists?

No way. Beyond the fact that the suits will intercept most of the funds before artists ever see them, you have to get radio airplay to get paid. Most artists can't get played on the radio now, and HR 848 doesn't change that. Labels will have little incentive to press lesser known and new artists onto the stations, since they'll make more money on the higher fees established artists will command.

If Cathy Hughes and black broadcasters wanted to call the bluff of RIAA and the pro "performance rights" people on showcasing new artists, they could garner unprecedented public support and look like real heroes in this.  All it would take, one industry insider told BAR, would be for them to throw away their payola-influenced playlists for a couple days each week and play nothing but new, unknown, up-and-coming artists.  "That's what they'd do if they really wanted to be the good guys in this, if they had the imagination and the nerve," we were told.  But don't look for that to happen.

Where Will the Recording Industry Plant its Next Revenue- Extracting Toll Booth?

Two years ago it was internet radio.  This season broadcast radio is in the crosshairs.  Once the “performance rights” toll booth is planted in broadcast radio, it won't be long before the RIAA demands payments from nightclub disk jockeys, who unlike radio broadcasters, do not have their own paid lobbyists, or from the guy down the street you hired to spin records at a birthday party last week. Think about it.  What if innovators like DJ Kool Herc and Afrika Bambatta were forced to pay a "performance rights" fee?

Ultimately, this is where the creation and expansion of new and old "intellectual property" rights leads us:  to the place where artistic innovation and simple truth telling are squashed by the need to maximize the profit of somebody who doesn't do the creating, the labor and the performing in the first place.

Runaway “intellectual property” rights are the problem, not the solution

Eyes On The Prize, the award winning 14-hour documentary first aired on PBS in 1987 and 1990 is a great example of how intellectual property rights are used to strangle free expression in the public interest. When the work was produced in the 1990s, its authors could only raise the money to get time-limited rights to the archival news footage and music used in this thirty-year chronicle of the Freedom Movement and its aftermath. When the rights to the music and news footage ran out in the 1990s, the program could no longer be broadcast anywhere in the U.S. Copies were pulled from shelves no DVDs of it were produced. By 2005 the asking price for copies of Eyes On The Prize was $1,500 on ebay, and the only publicly viewable copies were on the shelves of public libraries. This invaluable history was lost to a new generation. Why?

Because major news organizations like CBS and NBC claimed they had to get a cut every time it was broadcast since pieces of their news footage was in it. The authors and composers of songs played in the documentary insisted their “rights” were violated if the show was broadcast and they were not reimbursed. There's a scene in which Dr. martin Luther King's aides surprise him with a birthday cake and sing a verse of “Happy Birthday.” The multinational firm which owned the rights to the song demanded $20,000 to keep the scene intact. It's all a perfectly legal part of the intellectual property racket.

Another example of the absurdly parasitic nature of the intellectual property regime, is the classic 1942 movie Casablanca. Since it was made almost seventy years ago, every human being involved in writing, producing, performing, and editing it, those who catered the food, mixed the sound, worked the cameras, sets, costumes and makeup and the rest have all passed away, most of them decades ago. We don't have to worry about the movie's revenues encouraging these people to keep up their creative work because they are long dead.

Still, Casablanca remains the private intellectual property of its vampire owners, who had nothing to do with creating it. You cannot broadcast, perform, duplicate or sell a DVD of it without paying them. This is precisely what the Performance Rights Bill will do for radio; it will set up another deathless toll booth to extract payments, mostly for works decades old, on behalf of investors who had nothing to do with creating or performing it, but supposedly in the name of the performing artists themselves.

Two wrongs are just twice as wrong: oppose HR 848

HR 848 is bad news, no doubt about it, and should be defeated. Cathy Hughes and her posse dare not tell us exactly why, because the more we understand about the recording and radio industries the guiltier she and her colleagues look for helping construct and profit from this system which has now turned upon them. Black commercial radio is very much corporate radio and every bit as much the enemy as the corrupt recording industry. Commercial black radio does not deliver news or public service or local content. It doesn't showcase new talent. Black radio as we know it has never defended nonprofit community radio stations, or low power FM radio. Like the black business class itself, black radio has become incapable of defending itself by painting an accurate picture and simply telling the truth – black radio refused to step up when the performance rights toll booth was imposed on internet radio, by which time any fool could see they were the next target.

Where Do We Go From Here?

We have to look beyond old John Conyers, his celebrity spokespeople and the lobbyists who pull their strings. We have to ignore the hypocritical squeals of Cathy Hughes and corporate black radio. The broadcast radio and intellectual property regimes are both in need of deep and thorough reform.

Corporate actors need to be held responsible directly by the people. Black audiences need to demand that the corporations who aim their broadcasts at black communities:

Support HR 1147, the Community Low Power Radio Act

This law enables nonprofit community broadcasters to operate low power radio stations with three to six mile footprints in thousands of urban, suburban and rural communities. Low power nonprofit broadcasters will provide news and public service and access to audiences for local artists.

Support community radio and nonprofit broadcasting

Hundreds of community radio stations already exist to provide cultural and news programming that corporate outlets refuse to. They too will be adversely affected by the performance rights toll booth.

Remove the “performance rights” toll booth from internet radio, and prevent its extension to deejays and others

The proliferation of “intellectual property” toll booth is virtually strangling the new medium of communication in its cradle, and the reach of the intellectual property rackets threaten film, video, the internet and the emergence of new art, artists and means of expression. Ways must be found to compensate artists, not investors.

Allow CDs and DVD mixtapes and videos to be sent through the mail at no cost

For most of the 19^th century, newspaper postage was free. When Frederick Douglass and others started anti-slavery newspapers they paid no postage, and newspapers were most of the post office's traffic. Technological advances have placed audio and video production within the reach of many, but corporate lobbyists have rigged the postal code to prevent the sharing of CDs and DVDs with mass audiences.

Demand that the FCC conduct real inquiries into payola

This is the dead dog in the room that neither the “save black radio” crowd nor the recording industry will talk about. But it's real, and it's the main barrier to new and diverse artists being heard on the airwaves.

Shorten the broadcast license term to three years

Under Ronald Reagan broadcast licenses were extended to eight years, making broadcasters much less responsible to the public and thwarting the public accountability at renewal times. Acting FCC Commissioner Michael Kopps has already suggested this reform, though he says it will be up to his successor appointed by the Obama administration to carry it out. That means it's up to us to demand it.

Demand that black radio employ journalists and a newsgathering operation or lose the good will of black communities.

This is a demand communities can make directly upon the corporate license holders. A generation ago black radio did exactly that, and provided news and public service to its audience, something we will not see again without a demand.

Use the transition to digital radio as the occasion to redistribute broadcast licenses.

Like the transition to digital TV, the switch to digital radio broadcasting means that many more frequencies will be available. But instead of the time for voices to be heard, a corrupt deal gave all the new digital TV channels to existing holders of broadcast TV licenses. That must not happen with digital radio.

BAR managing editor Bruce Dixon can be contacted at Bruce.Dixon(at)BlackAgendaReport.com.