The Copyright Royalty Board issued a landmark determination Tuesday (May 23) for Phonorecords III, maintaining an up to 44% raise for U.S. songwriters and publishers’ headline rate for mechanicals by the end of the period of 2018 to 2022.
The ruling increases those royalties each year during the five-year period — from 11.4% to 15.1% of service revenue by 2022 — but also affirmed key requests from streaming services during their lengthy appeal, limiting royalties based on total content cost (TCC) and reinstating a rate ceiling step in the formula. While the document is restricted from public viewing, an appendix to that determination containing the regulations at the heart of the restricted document was released to the public Wednesday (May 24).
To calculate how much is owed to songwriters and publishers, streaming services use a complex, multi-pronged formula dependent on numerous considerations. Many of these elements were revealed prior to the release of this week’s documents, so while it is noteworthy that the board is now in the last stages of finalizing the rules for Phono III after an appeal by digital services in 2019 was remanded back to the CRB, this determination cements what was previously reported. It has been described in the past as a “mixed decision” by insiders, with some stipulations favoring the interests of the music business while others favor streaming services.
Proceedings to decide how to pay songwriters and publishers for U.S. mechanicals during 2018-2022 began over five years ago. In 2018, a CRB determination set the headline rate moving upwards from 10.5% of a streamer’s revenue in 2018 to 15.1% in 2022 and increased the subscriber count calculations for discounted family and student plans to 1.5 times and 0.5 times respectively.
The 2018 determination also removed the publishing rate ceiling mechanism that prevents the publishers from automatically benefiting with higher payments when their label counterparts are able to negotiate higher rates for their master recordings. This was one of many qualms streamers had with this determination, given that many details were especially favorable to the music business. Spotify, Pandora, Google and Amazon noted then that they felt the board “acted arbitrarily and capriciously by simultaneously combining a TCC prong with an increase in the percentages of revenue prong, [or ‘headline rate’].”
Because some of the digital services hoped to regain some of the more streamer-friendly stipulations from the previous period — Phono II — Spotify, Pandora, Google and Amazon launched an appeal that was successful and resulted in a “remand” process that dragged on until now — after the 2018-2022 period was over. Apple, notably, did not participate in the appeal.
The new Phono III determination upholds the previous headline rate of up to 15.1% of streamer’s revenue by 2022, increasing each year by a full percentage point or by 0.9 of a percentage point, similar to how it was determined in 2018. This detail was revealed by the board in July 2022, as Billboard reported at the time. It also upholds the subscriber count calculations of 1.5 times for discounted family and 0.5 times for student plans, as proposed in 2019.
The appeal did, however, result in a few key wins for streaming services. It also reinstalled a rate cap of 80 cents per subscriber. Namely, the appeal lowered the total content cost calculations — which limits songwriter and publisher payouts to a percentage of what is paid to labels — from what the board determined in 2018.
While the music business was hoping for a TCC rate of 26.2%, the streaming services requested and received a range of different rates depending on the offerings, from the lesser of 20.65% of TCC up to 22% of TCC.
The U.S. mechanical royalty owed to music publishers and songwriters is calculated based on choosing between either the royalties calculated using the headline rate; or the lesser of either the percentage of TCC or 80 cents per subscriber. Whichever of the two pools is greater is selected as what’s known as the “all-in pool.” Afterward, the performance royalties are subtracted from the all-in pool, leaving just the mechanicals behind. The mechanicals are then measured against a per-subscriber pool, and whichever is bigger becomes the final mechanical royalty pool paid out to publishers and songwriters.
The most important TCC percentage rate for Phono III, the rate for standalone portable subscriptions, is 21% of TCC against 80 cents per subscriber.
Since the all-in royalty rates for this prong of the formula are determined based on the greater of the two options — either the headline rate or the lesser of the TCC pool or an 80 cents per subscriber calculation — it is feasible that the TCC rate will not be employed in certain future situations.
In the past, this prong of the formula has helped publishers get a percentage above the headline rate. For example, in 2021, when most services had reverted to the 2013-2017 term headline rate of 10.5%, the multi-pronged formula helped yield an all-in 13.4% of service revenue for publishing royalties.
Participants in the remand included the National Music Publishers’ Association, Nashville Songwriters Association International, songwriter George Johnson — who personally fought back against the streaming services on behalf of the independent songwriter in self-filed court documents — Spotify, Pandora, Google and Amazon.
Next, there is a 15-day window for rehearing motions. Then the Copyright Office will conduct a legal review for error, which could take up to 60 days. After that, the determination will be fully published, giving streaming services and the music business six months to go review and adjust past payments made for U.S. mechanicals to the new rates for 2018-2022 — a process that will likely be a financial boost for the music business.
Still, after this determination is published, the parties will have the opportunity to file a notice of appeal for 30 days.
“We are pleased the court finally has confirmed the result of Phono 3, a case which was decided in 2018. This initial remand decision upholds the 15.1% headline rate increase we fought for, however the length of time we have waited for this decision proves the Copyright Royalty Board system is woefully flawed. Now songwriters have some certainty about their rates, and we will ensure they receive the hundreds of millions of dollars that digital streaming companies owe them during this adjustment period,” said David Israelite, president/CEO of the NMPA.
“The testimonies of the three songwriter witnesses in this trial were powerful, convincing and illustrated the difficulty of songwriters earning a living in the streaming era — as well as the importance and value of the composition in the commercial music process,” said Bart Herbison, executive director of the Nashville Songwriters Association International (NSAI).
“Steve Bogard, Liz Rose and Lee Miller, all NSAI board members, were moving and informative and played a huge role in the historic increase,” Herbison added. “The process is long and difficult requiring time and preparation. We are thankful to these songwriters and to the NMPA.”