In for a penny: Meet the Nashville songwriter taking on the streaming services
Of all the professions in all the industries that the internet has upended over the past 20 years, songwriting may be the only one in which a legal decision to award fractions of a penny to content creators was deemed cause for celebration.
The passage of the Music Modernization Act, which garnered bipartisan support in Congress and was signed into law by President Trump in 2018, was meant to ensure that songwriters who hold the legal copyright to music receive at least some compensation when that music is streamed online. The idea was to offset the dwindling income from hard-copy music purchases, which generate so-called mechanical royalties of 9.1 cents for a songwriter when a CD is produced for sale.
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But the impact of the law has been underwhelming for the authors of even the most popular hit songs. And for the vast majority of songwriters in the U.S., whose ranks are steadily dwindling, there's been no impact at all.
George Johnson is heading to court Tuesday morning to try and change that.
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An unassuming 53-year-old songwriter who grew up in West Virginia, Johnson cuts an unusual profile as David to the tech industry's collective Goliath of streaming companies: Spotify, Pandora, Google and Amazon. The four companies are intervenors in an appeal Johnson is bringing against the federal Copyright Royalty Board. Johnson is representing himself, after months of trying unsuccessfully to find an attorney willing to file his appeal. He'll have four minutes to make his case before a panel of judges at the U.S. Court of Appeals for the District of Columbia Circuit.
Johnson isn't naive, acknowledging his battle on behalf of fellow songwriters is a long shot at best. But his goals are ambitious: to convince the judges to adjust for inflation the decades-old royalty rate of 9.1 cents to about 50 cents, and to abolish the concept of a "limited download," the term used to describe when a song is downloaded for offline listening, for which the traditional royalty rate does not apply. In both cases, the royalty rate is next to zero. When you stream a song on Spotify, for example, the songwriter who wrote that song earns a fraction of a penny, typically less than .0005 cent.
Johnson wants to flip the system, merging the streaming of a song and the sale of the underlying intellectual property, which he says has been effectively splintered with the popularization of streaming.
"What streaming is — I call it legal piracy. If you are going to pay .0004 cents, you are basically stealing the song," said Johnson, a self-described "free market" guy. "Giving away music for free has got to end. It's a job just like anyone else's."
When Johnson first moved to Nashville in 1997, he said, there were about 4,000 songwriters who made a living on the city's "Music Row," the heart of the country music scene. It was the tail end of the period when consumers still bought CDs. At 9.1 cents a song, a songwriter who wrote music for a hit album could earn $100,000 or more, Johnson said.
Today, he said, the number of songwriters on Music Row has shrunk to about 400. For people like Johnson, making a living writing songs in a world where few people still buy music is so far from reality it's a stretch to even call it a dream. Unlike artists who perform on stage, songwriters only earn money from royalties, and even the most wildly successful earn startlingly little for smash hits.
Take Josh Kear, who has a record three Grammys for country song of the year and has earned a reputation as an advocate for songwriters. Kear said publicly in 2017 that for the hit song "Need You Now," which he co-wrote with the country music group Lady Antebellum and was streamed 72 million times, he earned $1,500.
"Most songwriters think they'll get some money somehow. Or they have this false sense that if they put [a song] on the internet, it's going to go viral," Johnson said. "And it almost never happens."
While Johnson's case faces long odds, his argument to boost the 9.1-cent royalty rate on traditional album cuts has support. Jacqueline Charlesworth, former general counsel at the U.S. Copyright Office who now handles intellectual property disputes in private practice, agreed with Johnson in an amicus brief she filed in his case in November. At issue, Charlesworth argued, is the revenue percentage formula that since 2008 has determined how much a songwriter is entitled to when a song is streamed. Unlike the fixed royalty rate of a CD, the streaming amount varies slightly, adding up to just a fraction of a penny in most cases.
"There is no comparable example of a profession where the government sets the price for the fruits of one's labors," Charlesworth wrote.
As Johnson prepared to make his case in court this week, the streaming companies whose legal teams will line up against him were quiet. Spokespeople for Google and SiriusXM's Pandora declined to comment. Spokespeople for Spotify and Amazon did not respond to requests for comment. (Notably absent from the group: Apple, which unlike the other streaming companies hasn't challenged the minuscule increase in streaming royalties owed songwriters under the copyright board's current formula.)
In addition to the streaming companies, other intervenors in Johnson's case include the National Music Publishers Association, the trade group representing music publishers and songwriters, and the Nashville Songwriters Association International. A spokesperson for the NMPA did not respond to a request for comment, but the group's CEO, David Israelite, published an op-ed Monday blasting the streaming companies for fighting to further shrink the share of music-streaming revenue given to songwriters.
Barton Herbison, executive director of the Nashville Songwriters Association International, called the passing of the 2018 law a "monumental victory," but acknowledged that, for most songwriters, that victory amounted to a pile of pennies.
"This goes back to the advent of streaming. Royalties are ridiculously low," Herbison said. "The streaming companies don't want to pay the songwriters who create their product."
Once oral arguments conclude Tuesday in Johnson's case, a three-judge panel could take months before reaching a decision. While any win for Johnson would be a win for all songwriters, Johnson hasn't seen a rush to join him in the fight. Instead, many have simply quit. Johnson said he's lost count of the number of fellow songwriters who drive an Uber or wait tables to earn a living.
"I'm tired, I'm not an attorney," Johnson said as he prepared to make the trip to Washington. "I'd just like to get back to writing songs. And maybe making some money. … Zero cents is unacceptable."
Correction: An earlier version of this story contained an incorrect reference to royalty rates. When a consumer streams a song on Spotify, the songwriter who wrote that song earns a fraction of a penny, typically less than .0005 cent. This story was updated March 10, 2020.