Any girl who was a teenager at end of the nineties or in the early 2000s certainly remembers “What A Girl Wants,” Christina Aguilera’s emotion-tinged hit single that topped the Billboard Hot 100 and remained there for 24 weeks. With that song and “Genie in A Bottle,” the 19-year-old Aguilera became an international superstar. In 1999 she released an album that would go platinum eight times; in 2004 she won a Grammy award for “Beautiful” and immediately gained the lavish lifestyle of the modern celebrity—from ordinary teen to award shows, stilettos, a self-named fragrance, and a multi-million dollar mansion in Beverly Hills.
But most people who purchased Aguilera’s eponymous first album or attended one of her sold-out concerts were not aware of one important fact: Aguilera did not write the songs herself. While Aguilera became wealthy through live performances and album and merchandise sales, Shelly Peiken, who co-wrote “What A Girl Wants,” stayed at home and wrote more songs for other performers. There is nothing unusual about Aguilera and Peiken’s arrangement. This was not a case of the lesser-known half of a duo getting duped while the other gained international stardom. This is just how the music industry works.
Peiken, a fifty-something Los Angeles resident and lifelong songwriter, has written hundreds of songs for multiple chart-topping artists: Aguilera, the Backstreet Boys, Jessie J, and Demi Lovato, among others. If you are not involved in the music industry, you probably haven’t heard of Peiken, and she knows that. Peiken comes from what might be the last generation of songwriters who can make a living off this skill. Staying in the background writing songs without any of the fame or recognition might not seem like a great gig, but for writers like Peiken, it’s their passion.
Most recording artists do not write their own music. All songs, contain two separate copyrights: one for the recorded version, and another for the written material (the musical notes, the words, and so on). Complications arise when it comes to the payment of royalties for purchased music (digital or physical CDs)—or as is more often the case today, when it comes to streamed music. The royalties that artists and songwriters receive when their songs are purchased or played on this new medium vary across the platforms, and it is often barely enough to sustain a career. For recording artists, though, there is the prospect of concert ticket sales and merchandise; for the songwriters, the only profit comes from the purchase or streaming music. Copyright law has not kept up with the advent of digital streaming services such as Pandora, Spotify, and Apple Music. This has culminated in a multi-faceted battle in Congress and America’s courts. To simplify the issue, the so-called “creative community”—consisting of record labels, recording artists, and songwriters—has been pitted against the tech industry of digital streaming services.
Songwriters’ revenue is largely regulated by the federal government. The legislation that governs their revenue streams was created during World War II and last amended in 2001, even before the invention of the iPod, let alone streaming services. This legislation was created to regulate royalties awarded to songwriters from vinyl records and the radio; its inability to keep up with the music industry has paved the way for streaming services to enter the market. Since their existence is relatively new, old-fashioned copyright law does not apply to them. It was easy to take advantage of an outdated law and create a business model that maximized profits to the streaming services by limiting the royalties awarded to songwriters and artists.
“The less they have to pay to songwriters, to record labels, the more profit they can keep from ad sales or subscriptions,” Peiken told The Politic. Spotify pays songwriters between $0.006 and $0.0084 for one stream of a song for which they hold rights.
“People cannot support themselves with songwriting alone like we used to do,” Peiken added with a note of remorse—and disdain. From the sale of eight million copies of Aguilera’s debut album with Peiken’s hit, Peiken took home $240,000. “If my song streamed ten million times,” she estimated, “I would most likely make a few thousand dollars.”
Enter Congress. We tend to equate Congress with highly polarized (and publicized) partisan battles. We rarely expect members of Congress to put aside their partisan prejudices and vote based on which legislation really speaks to them, but this is indeed how members of Congress often approach the issue of performers’ rights.
The face of the music industry is changing. This is indisputable. Pandora Radio, the platform that lets users create customized radio stations based on a song or artist they like, started in 2000. Spotify, the immensely popular music-streaming service, emerged in Sweden in 2008 and entered the American market in 2011. Pandora has 250 million users, 80 million of which actively use its services; Spotify has 75 million users. There is no doubt that people are no longer paying to own music when it is all available on Spotify, either free (with ads) or for a Premium service at $9.99 a month—the cost of only seven and a half songs on iTunes. The Recording Industry Association of America (RIAA) changed its standards of determining which songs can win Gold or Platinum awards to include not just downloads but “streams” as well. (500,000 downloads and/or streams lead to Gold certification; 1,000,000 downloads and/or streams lead to Platinum certification.)
But while these services deliver a streamlined performance and easy music access to users, what they offer to musicians—songwriters especially—is murky at best. Alec French, principal at Thorsen French Advocacy, a lobbying and communications firm, represents the American Society of Composers, Authors, and Publishers (ASCAP), a major representative of creators.
“The problem [with streaming services] is that what they pay songwriters is shockingly low,” French told The Politic. French gave the example of Kevin Kadish, co-writer of “All About That Bass” by Meghan Trainor. According to French, Pandora pays songwriters $100 for every million streams. “All About that Bass” had been streamed 178 million times on Spotify in roughly the first 15 months following its release in June 2014. Kadish was paid just $5,675. Even if Kadish wrote several other songs that year that reached the popularity of Trainor’s summer hit, he would still barely make a living.
Shelly Peiken deems this an example of how songwriting “has become unsustainable financially.” The creative community agrees that when a songwriter produces a work that goes platinum nine times and cannot live off this work alone, something must change.
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The issue is more complicated than this depiction of the big, bad, profit-driven streaming services versus the under-appreciated underdogs in the creative community. Spotify has an entire website (aptly named Spotify Artists) devoted to explaining its royalty policies and their benefits to artists. It shifts the argument to focus not on how Spotify’s payouts compare to what songwriters used to receive from album sales; rather, it asserts that by paying artists and songwriters at all it is benefitting the music industry by bringing in users who otherwise would pirate music for free through illegal channels. Its message is that is has co-opted a failing music industry whose most important revenue streams no longer exist.
On Capitol Hill, lobbyists for these issues represent a wide array of organizations, companies, and people. The National Music Publishers Association represents the songwriters—the ones who write music but do not perform it—and the ASCAP, which supports the Songwriters’ Equity Act. This legislation would change just two statutes of the existing copyright law by requiring courts to look at consent decrees. Right now, courts that set the royalty rate for songwriters are not allowed to view evidence showing the market rate of songwriters’ products rather than the rate artificially set by the federal government.
Then there is the recording industry, which is typically on the same side as the songwriters (the “creative community”), but which has different priorities. The recording industry is represented by the RIAA and the Recording Academy, best known for the Grammy awards, and for bringing popular artists to Capitol Hill to meet with legislators. Though they also support the Songwriters’ Equity Act, their focus is on the Fair Play, Fair Pay Act. This bill would target another entity, the broadcasters, by making radio stations pay royalties to the recording artists when their songs are played.
Then there are the streaming giants. Pandora Radio and Spotify both have lobbying contingents on the Hill, and they are joined by Google, which owns YouTube, a streaming service of a different kind. DiMA, the Digital Music Association, represents their interests on the Hill as well.
Another set of interests also comes into play: broadcasters—the radio industry. The National Association of Broadcasters (NAB) is an advocacy organization that represents 7000 radio stations and 1200 TV stations. The NAB is currently promoting the Local Radio Freedom Act (LRFA) in direct opposition to the Fair Play, Fair Pay Act; the LRFA would not allow Congress to pass laws creating any new royalties to be imposed on radio stations.The LRFA just gained support from its 219th member of Congress, meaning it has passed the threshold to securing a congressional majority, effectively ending the chance of the passage of the Fair Play, Fair Pay Act.
The connections between these organizations are tenuous. Sometimes the songwriters side with the recording industry against the streaming services. Other times the recording industry chooses to fight the broadcasters, with the streaming services backing them up. Then the broadcasters fight back, claiming the recording industry’s frustration is misplaced. And then songwriters and the recording artists can disagree. Against all expectations, these policy battles are not Democrat vs. Republican.
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Few politicians who run for office feature support for the tech industry or the creative community strongly in their platform, perhaps unless they represent Silicon Valley or Hollywood. It is not a partisan issue, although it is a divisive one. There is no single factor that may predispose a member of Congress to choose the LRFA over the Fair Play, Fair Pay Act or to co-sponsor the Songwriters’ Equity Act. The way these groups reach lawmakers is by meeting with them personally and explaining the meaning of the cause. In a way, it brings politics back to simpler times—it really is a battle of hearts and minds. Tell a congressperson your story, and if it resonates with her, then she is one step closer to supporting your cause.
For Shelly Peiken, who is not a career lobbyist like the advocacy gurus at the Recording Academy or like Alec French, or like the big teams assembled by Pandora, this is difficult. Peiken can crank out dozens of hit songs a year and befriend pop stars, but meeting with the legislators who decide whether or not she can make a living is much harder.
“Somebody else set up our meetings. I’m pretty new at this. It’s not my forte. I’m good at three minute songs, but I feel this is important,” Peiken admitted. Her husband Adam Gorgoni, film and TV composer and fellow advocate, agreed.
“They have a certain amount of political capital,” Gorgoni added, though he admitted that he and Peiken only spoke with people already friendly to their cause. He and Peiken are new at lobbying; “we haven’t really gotten to that point yet,” Gorgoni acknowledged, in reference to the uncommitted members of Congress who might be harder to convince.
What it comes down to is a race, a battle to see who can make the best case and who can do it fastest. Right now, as technology evolves, politicians are still forming their opinions. Every group with a stake in the matter is working to create the best strategy to promote their message and reach as many people as they can. Dennis Wharton, Executive Vice President of Communications at the NAB, understands the importance of this hearts-and-minds strategy. Right now, his cause is “winning” with a majority of votes in Congress committed to the Local Radio Freedom Act.
“We simply make the case to whomever will listen to us,” Wharton told The Politic, referring to the NAB-backed bill that would not allow any increase of royalties imposed on radio stations. “We make our case and ask them to support us.”
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Today, young people not only expect cheap, easily accessible music, but they also feel it is inevitable. This is how the industry has evolved, and when young people have known nothing else, it cannot necessarily be expected that they, too, feel frustrated by the relatively limited, and perhaps unfair, royalties awarded to songwriters and recording artists. Tom Marano ‘16, former chair of Yale’s Spring Fling Committee, was tasked with contacting artists’ managers and arranging their performances. He, like many other college students and young people, has switched from iTunes to Spotify.
“Many people would rather pay the monthly cost and benefit for the ease and convenience of Spotify,” he told The Politic, rather than illegally downloading music. But Marano also notes that he, as a casual listener, is not aware of the challenges Spotify might pose to songwriters; and, he admits, “so long as I don’t feel the quality of music is suffering as a result of this fact, this is not something I consider.” Marano is likely not alone these beliefs.
Shelly Peiken’s “What A Girl Wants” came at the tail end of the CD age, and because of that, she could make an upper-middle-class living as a songwriter alone. People cannot do that anymore, for better or for worse. Spotify and Pandora do, after all, bring music to the masses; perhaps more people hear Peiken’s compositions now. But Peiken ends her aforementioned lobbying sessions with a targeted indictment on lawmakers and the general public for the acceptance of the status quo—the inequitable compensation songwriters receive.
“You are making so much money from my content,” she tells people, pleadingly, “that it’s so hypocritical to say streaming should be free.” For Peiken and others, the fate of music is not sealed; there is a right side of this history, and she plans to work to ensure that streaming services do not escape scrutiny and profit from her work without letting her profit as well. She may be a political amateur, but she knows how to get straight to the heart of the issues, and she is not afraid to speak her truth: “If there weren’t songs there wouldn’t be streaming services.”