Rethinking radio's "pay to play" policy 

With the help of some local authorities

Today's question is this: Should AM and FM radio pay royalties to performers whose music they broadcast?

My immediate answer is of course not. Performers beg radio for airplay. In fact, performers and their record companies spend hundreds of millions of dollars each year trying to convince radio to play their songs. Airplay = additional sales of CDs (or digital downloads), concert tickets and merchandise. Asking for airplay, then charging for it, seems at least gauche and at most wrong. And asking radio for money now, at a time when all communications businesses are hurting, feels like piling on.

But after reading about the Performance Rights Act, which is now being debated in Congress, and talking to those with a vested interest, I'm rethinking my position.

The Performance Rights Act would amend federal copyright laws to grant performers compensation from terrestrial broadcasters who play their music. Details of the legislation are available at

One reason I'm coming around to the performers' point of view was something in an e-mail from Lisa Hanna, a representative of musicFIRST, a coalition of artists and music-business folks.

"Broadcasters do not play music for the purpose of benefiting an artist," she wrote me. "Broadcasters are in the business of selling advertising. By playing music that attracts large audiences, broadcasters are paid handsomely by advertisers. Actually, music promotes radio."

While that may be chicken-and-egg, her comment brought to mind a portion of a 1997 interview I did with Jeff Smulyan and Rick Cummings of Emmis Communications.

Q: Does radio owe anything to music? What I mean is, does radio have a responsibility to break, develop and continue bands' careers?

Cummings: Absolutely not.

Smulyan: That sounds like the record industry. The record industry says, "You've got an obligation." The only obligation that radio stations can ever have in this system is to its listeners. The only thing we can do is pay attention to our listeners and our advertisers.

Cummings: One of the things I used to say to a lot of the label heads who would call me at Power [KPWR-FM in Los Angeles] was, "When you guys become one of our top 20 advertisers - not any particular label, but the industry in general - I'll start to pay attention to what you're saying. But until then, I have one interest, and that's playing records I know my audience loves."

Smulyan: And even if they were our advertisers, it still doesn't mean you can play records that don't fit your audience. Because they won't advertise if you lose audience. You have to get your audience and you have to keep them happy.

Ouch. If that doesn't prove the performers' point - that radio is using their work solely as a means to sell advertising - nothing will.

My change of heart continued during a conversation last week with Bloomington-based folk singer Carrie Newcomer, who said this isn't just a fight between musicians and radio - it's a battle for music lovers as well.

"There's a disconnect in our culture, I think, between the artist and the art we love," she said. "We love music and art. We're moved by it and enriched by it. But often we don't associate the working musician and artist with the works that enrich our lives. Yes, the music business is a business with the word 'music' tacked to the front. But it's based on the hard work and passion of artists who want to continue making art ... If people appreciate art and love art and love music, I would hope they would have concern for the folks who make it and hope that they can continue making it."

Now, it's entirely possible that if radio is forced to pay royalties to performers, stations will retaliate by declining to interview musicians who want to promote their CDs and tours. Or they'll figure out a way to charge for that service.

Some stations might even switch to talk formats.

But that's down the road.

In the meantime, here's what else Newcomer had to say.

NUVO: My first thought was, this legislation is ridiculous because artists depend so much on radio airplay to sell their music.

Newcomer: Radio has always received free product from artists and record companies. It's a fluke in our law. The reason is because broadcasters had a very strong lobby when this law was created years and years ago. Artists do become more well-known through their airplay. That's true. But the way it works is that radio uses free product. It brings listeners to their station and they sell advertising. What artists and the music industry are trying to do with this legislation is create a more fair and equitable arrangement. The United States is the only industrialized country that does not have a fair and equitable system in place when it comes to radio.

That's how I see this idea. Aren't they giving artists free advertisement? No, they're using a free product. What's really putting a spotlight on this is with digital media. With digital media [such as satellite and the Internet], we've become more in line with the rest of the world. The laws there take into account the songwriter and also the artist and the owner of the recording. With digital media, when the royalties come in, they're divided like this: 50 percent to the record company, 45 percent to the featured performer and 5 percent to the music union. What's important about this is, it puts into law a standard that protects record companies and musicians - a standard I'd love to see applied to commercial radio, not just digital radio.

NUVO: You said the radio stations get free product. But you don't have to give it to them.

Newcomer: Well, we don't have to send it to them. But if they choose to play it, they don't have to pay us for it. The way the law works is, they can play an artist's work and they don't have to compensate the artist for it. Whether we send it or we don't send it doesn't really matter. They're not required to compensate us. That's the problem.

NUVO: Artists and record companies spend hundreds of millions of dollars to get airplay. Then you go to radio and say, "Now that you're playing our records, we want you to pay"?

Newcomer: Radio uses musical products to bring people to their station. They're not selling music. They're selling advertising.

A radio promoter is essentially selling their product over another product. It's really simple sales. For example, in television, a production company creates a TV program. A network pays for the rights to broadcast it. And the station sells advertising that'll be shown during the program.

It's essentially the same in music, except that because of a fluke in the law, they're playing one free product over another free product. What this legislation is about is trying to bring music in line with other artistic works. Why should radio be the one place where it's OK to not be fair and equitable?

NUVO: You get royalties as a songwriter every time your music is played on the radio, correct?

Newcomer: I do as a songwriter. Songwriters are covered by performance rights. Songwriters and their publishers are paid through performance-rights organizations like BMI, ASCAP, SESAC. They collect and distribute those funds. But that has nothing to do with the artist who is performing or the owner of the sound recording.

If you're a performing artist and you don't write, but your performances are still being played on the radio, you don't get compensated for that.

NUVO: Is this the right time to ask for money when the radio industry is in financial trouble?

Newcomer: I'm 100 percent for insuring that there's a fair balance between the artists and the radio stations. Especially the non-commercial radio stations and the small, mom-and-pop stations. There are provisions in this legislation that call for a cap on what you can charge a non-commercial station. Same thing with the small commercial stations. So those stations would never have an unfair burden placed upon them.

As an independent artist, I really understand that piece of the legislation and it's really important. As I understand it, of all the billions that are made on commercial radio every year, most of it goes to a very small percentage of big stations. It's really the huge companies we're talking about here.

Because of the digital media having fair laws put into place for them from the beginning, it has put the spotlight on an old law that has never been fair as it relates to radio.

As for why now, the landscape of the music industry is changing. As record sales go down, there's going to be a new landscape for how artists are able to continue to make music. My concern is that the artist doesn't get lost in the debate. It comes down to fairness and being equitable.

I understand what you're saying when you say the economy is tough right now. But it's really tough for everyone. It's tough for musicians as well. It's tough for the record companies. It's tough for the radio stations. We're all trying to create this new landscape and make sure that all of us are able to continue providing music and art out there and put it into the world.

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Marc D. Allan

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