Publishers and Songwriters Are Due Hundreds of Millions in Additional Royalties. When Will They See That Money?

Entertainment

The MLC reports more than $400 million in adjusted royalties were underpaid between 2018 and 2022, but the actual amount still left to be paid out is likely smaller.

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On Friday (Feb. 23), the Mechanical Licensing Collective (the MLC) announced that they found $419.2 million in adjusted royalties for the U.S. mechanical royalty rate for streaming for 2018-2022, so when will the publishers and songwriters actually see the new influx of cash?

The MLC says it will begin releasing some of this money to rights holders in May and will continue the pay-out process steadily through the end of the year. This means that independent songwriters who are already signed up with the MLC will see some of these adjusted royalties hit their bank account as soon as May, but signed songwriters will likely see this reflected in the following quarter’s royalty statement from their publishers.

But the $419.2 million sum reported by the MLC is not all about to land in songwriters’ and publishers’ pockets – as much as one third of that amount might have already been paid out.

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The total sum owed to songwriters and publishers is divided into two types of royalties: mechanical and performance. There is $281.4 million in mechanical royalties to be paid out, and $137.8 million in performance, which is not paid out through the MLC but is paid directly to the PROs by the DSPs. However, some of the DSPs actually overpaid publishers for mechanical royalties during the period of 2018-2020 (also called the Phono III “historical unmatched period”) which cuts down the bonus actually owed to songwriters by $28.8 million in extra payments. Taking over-payments into account, the total amounts to around $390 million.

Sources in the U.S. PROs have told Billboard that they are surprised by the so-called performance royalties adjustment of $137.8 million because most of the money has already been paid out; or in the case of money received in the fourth quarter of 2023, will soon be paid out. Removing performance money from the total ultimately lowers the new adjusted royalties due to songwriters and publishers to $252.2 million.

Adjusted mechanical royalties from 2018-2020 that are matched by the digital services and/or their service providers will be distributed to publishers and songwriters by streamers directly, but because this is the period where some overpayments occurred, the bulk of these new adjusted mechanical royalties stem from underpayments made in 2021-2022, which will be paid out by the MLC. (The MLC was founded in 2021, and thus only works with money made after that point, plus unmatched and unclaimed funds before then).

Long Time Coming

Those who have been following the proceedings of the Copyright Royalty Board (CRB) — the government entity which regulates and determines how much publishers and songwriters get paid for mechanical royalties in the United States — have been waiting on this announcement for years.

The CRB reevaluates these royalty rates every five years, and for the five-year period called “Phonorecords III” or “Phono III,” which refers to 2018-2022, the board initially determined a new royalty rate for on-demand streaming in 2018 that was thought to be especially friendly to the music business. But some of the streaming services fought back with an appeal against that decision the following year, hoping to lower the rate and make it more comparable with the rates for the Phono II period (2013-2017).

That was the start of a lengthy and contentious legal battle between publishers, songwriters and streamers at the CRB, and it lasted until August 2023, when the Phono III rate was finally settled for good. The final rate for Phono III was not as favorable as the CRB’s 2018 initially determined rate, but it was still considered a win by the music business establishment.

Because of this multi-year back-and-forth, the streaming services were unsure of how much to pay publishers and songwriters for that entire five-year period. While they waited for more information from the CRB, some paid publishers at the Phono II rate and some paid publishers at the overturned 2018 Phono III rate, meaning some underpaid publishers and some overpaid. To make matters even more complicated, the way mechanical licensing on the publishing side worked systematically changed during Phono III due to the passage of the Music Modernization Act (MMA) of 2018.

The MMA helped alleviate what many believed was an inefficient mechanical licensing system. Previously, streaming services had to license each song on their platform individually, tracking down the proper parties – whether that be an indie songwriter or a publisher – and working with them directly. Due to the complexities of achieving this, hundreds of millions of mechanical streaming royalties for publishers and songwriters got stuck in limbo, forming what many have called “black box royalties.” (The MLC now uses the term “historical unmatched and/or unclaimed royalties.”)

The MMA set up a new licensing system for publishing mechanicals that covers all musical works under one simple blanket license. To administer and implement this new system, the MMA created the MLC, but the MLC did not start its operations until January 2021, meaning mechanicals earned during the first half of the Phono III period (2018-2020) were paid out the old fashioned way, while 2021-2022 mechanicals were paid to the MLC.

There are still more royalties to come: The MLC notes that several streaming services missed their deadline for reporting adjusted royalties and that it expects the total figure to increase by another $10 million to $15 million once those additional royalties come in. Every month that these services are delinquent on their payments, they incur a late fee tied to a percentage of the amount that is outstanding, though given most of those delinquent digital services are delinquent are smaller players, these late fees are not believed to amount to a meaningful number.

All in all, this means somewhere around $270 million in new adjusted mechanical royalty payments are coming to publishers and songwriters this year.

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