NEWS UPDATE: Gene Simmons testifies about artist royalties

Judiciary Subcommittees consider New Legislation to Amend Copyright Act called the American Music Fairness Act.  Yesterday, December 9, 2025, none other than Kiss’ Gene Simmons testified in support of this legislation at a hearing entitled   "Balancing the Interests of Local Radio, Songwriters, and Performers in the Digital Age," conducted on Capitol Hill in Washington, DC.

Transcript

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Welcome to Music Row Deal Makers, where we explore our world of making deals from Nashville's famed Music Remote. In the heart of Music City, we are the deal makers, from composing to closing. Now, here's your hosts, Barry Neil Schrom and Dennis Disney.

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Good morning, all of our fellow deal makers out there in the listening world. I'm Barry Neil Schramm. I am flying solo today on this, the 13th episode of Music Row Dealmakers from Composing to Closing. Dennis is a little under the weather, so we wish him a speedy recovery. He'll be back in our next episode. I am here today because we have some breaking news to discuss in our 13th episode. This is something Dennis and I have been considering doing in the podcast when urgent news arises that affects our industry. So today is an experiment with that model. Congress has been holding hearings the last few days regarding a new piece of legislation intended to amend the Copyright Act. So this is something that we felt was important to address, even though it's a bit of a departure from our normal programming. But as a copyright issue, it is something that very much impacts deal making generally and specifically in the music space. Rest assured we'll we'll resume our series on we're in the middle of Music Row Deals in the next episode. We'll probably be talking about uh publishing deals at that point. Uh remember to hit the subscribe button if you're listening, and and we're we're trying to push our number up over the 1,000 mark. We're very excited. So share us on social media, tell us, tell your friends about us. We appreciate you, the listener, and our fellow deal makers, and we'd like your help in doing that. So uh as I noted, this is something new that we're experimenting with. Let me know your thoughts by leaving a comment or calling 800 dealmaker. That's D-E-A-L-M-K-R. If you have those numbers on your phone, or 800 2 5657 if you don't, or send us an email at questions at musicrowdealmakers.com. We'd like to engage you in conversation. So in today's episode, as I noted, I'm going to be breaking down some proposed legislation. This piece of legislation has been referred to both the Senate and the House subcommittees responsible for intellectual property laws. It's called the American Music Fairness Act. Now, just because it says music fairness does not always mean that's the case. Congress is very fond of naming things with interesting acronyms and misnomers. So but we'll take a look. I think this one is adequately named. Yesterday, December 9th, 2025, none other than Kiss's Gene Simmons testified in a hearing on Capitol Hill in support of this legislation, and the hearing was entitled, Balancing the Interest of Local Radio, Songwriters, and Performers in the Digital Age. Due respect to Mr. Simmons. You may be asking yourself why his testimony was solicited. He's what I might affectionately call a dinosaur in the music industry. We do remember him, you know, way back in the 70s with his long tongue and white-faced makeup. And, you know, they were quite the spectacle, particularly in that day and age of high hair bands. They they dressed up like it was Halloween. But honestly, couldn't couldn't Congress find a sponsor for this legislation from this century? Maybe? I don't know. I'll get back into that. But first let's talk about this proposed legislation, what it is, what it does, and how it affects our little block here in Nashville called Music Row and and the music general, uh the music industry generally, and the deals we make here on Music Row because it will affect how we approach the law. So, in short, the uh the American Music Fairness Act, H.R. 861, if you want to look that up, that's the House Bill number, that was introduced by Ohio Representative Darrell Esa. And then our own very own Tennessee Senator Marsha Blackburn introduced uh Senate Bill S326. Now, if if this passed, as I said, it would amend the current Copyright Act, which is the Copyright Act of 1976, as amended many times. Specifically, it would amend a section of the Copyright Act known as Section 106, Subpart 6, 17 USC section 106 for those of you in the law. And that is affectionately sometimes referred to as the bundle of rights, because if you own a copyright, these are the rights that Congress gave the owners of copyright. Barbara Ringer, the registrar at that time in the in the 19 late 1950s up through the 70s, and her team were the drafters of this legislation. So Section 106 gives copyright owners, people who own a copyright, six rights reproduction, distribution, adaptation, public performance, and display, and then finally later added digital performances of a sound recording. It's important to note uh at this juncture that that there are two copyrights in what we call a piece of music. If you are an average listener and you stream music on Spotify or Apple or wherever, you are listening actually to two copyrights. One is a copyright in the musical composition. This is what those of you over 50 might remember as the sheet music. It is the notation, it is the the words and the melody. That is the musical composition, and the the person who, the songwriter who writes that, owns the copyright in that from the moment of creation. So that's one copyright. And then when someone wants to record that song, they get either a few first use license or a compulsory license in certain situations to do a recording of that song. So if I wanted to record it, I would go to the songwriter and say, I'd like to record your musical composition, and I would give them a license, or they would give me a license and I would give them a royalty when I sold the recordings. And I then could own the copyright in the sound recording. That's called the SR copyright. If you remember or if you've seen on uh Spotify or elsewhere the circle C, that re references the musical composition copyright. And if you've seen the circle P, that represents the phonograph copyright or the sound recording copyright. So getting back to Section 106, as I noted, there are there are two performance rights. There's a public performance right, and that's given to various types of art forms, except for the sound recording. So if I own a musical composition, I have the exclusive right, according to Section 106, subpart four, to perform that in public. However, a sound recording doesn't have a public performance right. Later, it was given a digital performance right. So when it is performed digitally over, for example, XM radio, then it generates a royalty. So section or subsection four allows the owners of the copyright and the musical composition, the sheet music, to receive a royalty when the composition is performed in public. And later, when radio became popular via retransmission over terrestrial radio or radio that goes through the airwaves. This public performance right specifically again excludes sound recordings. And so the royalties that are generated that are paid by radio stations and music venues on Lower Broad in Nashville or anywhere, arenas, venues of that nature, those are collected by ASCAP, BMI, and CSAC, and we call those public performance organizations or performance rights organizations, PROs for short. Now, section subsection six, the digital performance right, which is at issue in this legislation, was added by an amendment in 1995, and it gives the owner of the copyright in the sound recording, the the artist who sings it, the record company that owns it, the musicians who play on it, the right to receive royalties from those recordings when the sound recordings are being performed over any digital medium. As I said earlier, XM radio or digitally over the internet. Now, unlike the public performance right, this subpart only applies to sound recording. And these royalties are paid through an organization known as sound exchange. And through a certain uh percentage structure, they are paid by sound exchange to the owners of the sound recording, the primary performer on the recording, and the musicians on the recording. Those are not paid to the songwriters or the publishers. Those royalties, the the royalties we talked about earlier, the public performance royalties, still get paid by ASCAP, BMI, and CSAC. So two different streams of revenue. So this American Music Fairness Act proposes to amend that last subpart, subpart 6, the digital performance right in sound recordings, to give sound recording copyright owners a public performance right similar to the ones owned, one owned by the musical composition owner, the songwriters and the publishers. So effectively, if it passes, this would affect the radio industry because they would have to begin paying royalties to artists, performers, and musicians through sound exchange, much like the digital providers do, the streaming companies do currently. And when they play the recordings, when you listen to those over a terrestrial radio, they would be generating a royalty similar to the one that is paid to the songwriters. So why is this important? Why does this affect the industry? What's at stake in this legislation? In order to understand that, we we we have to go back, and those of you who've listened to me before know that I kind of like the history of these things. So we have to go back in history to understand how the music, the current music industry evolved, particularly as it regards the relationship between the recording companies, the recording industry, the artists, the musicians, and the studios, and the radio industry, the over-the-air AMFM radio. For almost a hundred years, there has been this divide between the performance royalties that the songwriters are entitled to, and the owners of the sound recording. And the the recording industry has always harassed the radio industry, saying you need to pay be paying us performance royalties just like you pay the songwriters. And they've always fought that out in in court, in the legislature's legislation, fights and debates over those kinds of things. So it it all goes back to those two copyrights, and we need to remember that as we go through this. So starting with musical composition, copyright. This is something that we in the U.S. did not acquire. And so for almost a hundred years, if you wanted to copyright a musical composition, you had to notate it and collect it with a group of other notations and copyright it as a book, as a writing. That was the only way to do it. So an entire industry grew up around that kind of printing the musical notation and getting a copyright as sort of a book. In the late 1800s, however, they added music as a designation. And then ultimately, the idea of attaching a performance right was still not part of the copyright law until later in 1909. And when that happened, songwriters and publishers at that time in Tin Pan Alley, as we've talked about in a prior episode here on Music Rogue Dealmakers, they began seeking ways to exploit that performance right. They didn't really understand how to do that at first, because copyright was essentially the right to make a copy or a reproduction of something that had been written down. When you start talking about music having a performance right, then it's difficult sometimes to wrap your head around when that might incur a royalty. So one such songwriter from Tinpan Alley was Victor Herbert, and he noticed that some of his musical compositions that had been published in sheet music form, two songs particularly from Maine to Oregon and the song Sweethearts, were being performed by orchestras in places such as dining rooms, particularly the dining room in the Vanderbilt Hotel in New York City, and down the street, Shanley's Restaurant, a very famous uh uh restaurant in New York City at the time. And for whatever reason, he was in these establishments and he noticed that these two songs, one one in Vanderbilt and the other in Shanley, were being performed. And of course, he goes to the proprietor and he says, wait a minute, uh you're you're playing my songs. You're performing my songs. Have you heard about this 1909 Copyright Act? Uh you you owe me a royalty. And of course, the proprietors are like, well, wait a minute, no, no, no. We we sell food here. We don't we don't really, you know, sell music. We pay the performers to perform the music, and they're the ones that that choose what they play. We don't have anything to do with it. And furthermore, we don't charge any admission for the musical performance. We're charging people for the food. So in other words, they said it's not my problem, Mr. Herbert. So Herbert went to court and he sued, and that litigation went all the way up to the Supreme Court and became a very seminal case in the I in the context of performance royalties, which we're talking about in this new act. The case is known as Herbert versus Shanley. And in a very famous opinion, Oliver Wendell Holmes Jr. held in favor of Mr. Herbert, the songwriter, and said that you guys using it in a restaurant need to be paying these guys because they have a performance right. And just because people are paying for the food, that doesn't mean that the music's not part of it. There's a reason why you're using the music, in other words. He said music is a part of the total for which the public is paying. Those are his words, not mine. And the fact that the price of the whole is attributable to the food which they're expected to order, that's not important. He said, it is true that the music is not the sole object, but then neither is the food. You can get that cheaper elsewhere as well. So you gotta look at the experience as a whole. And if you're charging people to come in and you want them to come in and you're using music to draw them in, then you need to be paying royalties. So that was a big decision. And the result of that decision was that that Herbert, Victor Herbert, along with Urban Berlin, uh John Philip Sousa, and a lot of the other 10 Pan Alley legendary bulwarks of the time, songwriters, they got together and they formed the Association of Songwriters, Composers, or and Publishers, or ASCAP as we now know it, uh, to begin collecting those performance royalties that they had just reaffirmed in the Supreme Court. A decade or so later, uh CSAC came along moving here from Europe, and then later on, BMI, through uh disputes with ASCAP, began to form. Broadcast music musicians began to form their own performance rights organizations. So that's how that's how PROs evolved, and that's that's how the royalty structure for performance in America came about. And that's how it's still done even today. Now, we have to understand how that folds into the broadcasting industry, because in in these days in 1909 and and subsequent to that, there were several technologies that were evolving at this period of time. The the player piano had evolved over the turn of the uh of the 20th century. The Edison had invented the phonograph record and and recording began to materialize and evolve, and companies began to grow up around this idea of recording music. And Marconi in the late 1800s had invented the radio tube and and and broadcasting and and and airways and those things begin to form. So it all began to evolve at the same time. What is important to realize here is that these rights we're talking about in this new legislation have been fought for. They've been obtained by composers and songwriters. And initially, at least, they were obtained at a time when neither recording nor broadcasting had fully evolved to the point it is now. So at that time, at least, and for a long time thereafter, U.S. copyright law didn't recognize any type of performance right for those owners, the owners of the sound recording copyright. So begin, you know, beginning in the late 1800s and through the 1920s, the recording industry did in fact begin to evolve. One company, the Gramophone Company, is known to have made a total of 200,000 different recordings during that period of time, which is uh phenomenal for that period of time. And of course, the silent film industry and and radio broadcasting were also being uh introduced and evolving, and they became mainstream. And and when that happened, well, that's a different form of entertainment, right? You didn't have to go out and buy a record, you could just turn on your radio. So record sales, at least initially, began to drop with that kind of competition. Every new technology that we experience changes copyright law. And and but in the 1930s and then again in the 1950s, the the the record industry would pick up and then diminish and then pick up again. So from the beginning, there was always this kind of inherent tension between the companies who were making the recordings, making the music, and the companies who were playing those recordings and broadcasting them across the country. All the while, because of Herbert versus Shanley, the songwriters still possessed this public performance right, and the companies that produced the sound recordings did not possess a performance performance right. So, what this means pragmatically is that these radio broadcasters they were required to pay the songwriters a performance royalty because that is a retransmission of a performance of the musical composition, which they paid and still pay to ASCAP, CSAC, and BMI, and then they distribute it to the songwriters and publishers. But they did not pay a Royalty to those artists who perform the compositions in derivative works on the sound recordings. So their argument has always been, well, hey, we're giving you free marketing. We're selling your records for you, and we're not charging you for it. So why should we have to pay you, the artist, the record labels, to promote your music? We're, in effect, selling your records. So that's when the great divide between these two industries began to evolve. And that happened for almost a hundred years. And so these two stakeholders in the music industry are at odds and have been at odds. And every time the record industry would go to Congress and ask for a performance royalty, public performance royalty in sound recordings, the radio industry would come in and say, well, no, no, no, no. We've been giving them marketing, free marketing for hundreds of years, and you can't do that. And so there's always been that inherent conflict between the two. It was not until 1971 that the recording industry received a little bit of recognition and a public performance right was discussed and given to the owners of the sound recordings. But it wasn't really fully fleshed out until another two decades when Congress passed the 1995 Act called the Digital Performance Right and Sound Recordings Act. And at that point in time, sound recording owners received this right we're talking about right now, the Section 106, Subpart 6 Rite, the Digital Performance Right for Streaming Music. The royalties for sound recordings, the digital royalties, performance royalties, fall into three broad categories based on what type of transmission is being used to transmit those recordings, broadcast versus internet, satellite or cable, and then how the service functions, whether it's interactive or non-interactive. So there are three broad categories: exempt transmissions, non-interactive digital transmissions, and interactive digital transmissions. Non-interactive digital transmissions, things like Pandora, Satellite Service, Sirius F XM, Stingray Music, and others, are subject to statutory licensing. They don't have to get permission from the copyright holder. It's done through Section 115, which is a compulsory license, and they can perform these sound recordings provided they pay a royalty rate that is set periodically by the copyright royalty tribunal or board. Other services, like Spotify and Apple, which allow you to interact with the music and choose the music, they have to go directly to the owners of the sound recording copyright. So what's going on in Congress right now is that there are two respective pieces of legislation, and both of these that are being proposed here in 2025 reflect this historic inherent conflict between the radio industry and the recording industry. The first one, reflecting the radio industry, is a non-binding resolution known as the quote, Supporting the Local Radio Freedom Act, or the LRFA. And there's a resolution in both the House and the Senate. And if passed, this would effectively declare support for maintaining the status quo so that the sound recording copyright owners would not have a public performance right. The LRFA resolves that Congress should not impose any new performance royalty or any other fee or charge for the public performance of sound recordings by a local radio station via over-the-air broadcasting, or what I've called terrestrial, or on any other business for such public performance of a sound recording. So that's pretty severe. Now, opposing that, and that's one of the reasons why the American Music Fairness Act of 2025 has been proposed. Bills that I talked about earlier, HR 861 and Senate Bill 326, both abbreviated AMFA, would expand that public performance right, as I explained earlier, for sound recordings. And that would include any kind of audio transmission, including a radio transmission over the air. So that gets us back to what happened yesterday. And I got to tell you, this was a very busy day for Strom Disney. We received a call first thing in the morning from Fox News asking us to comment on the AMFA, and in particular the hearing at which Gene Simmons testified. And I did that interview yesterday with a reporter from Fox News Multimedia, a guy named Asher Redd. And as far as I know, the sound bites from that interview are perhaps being distributed uh across the Internet today. So in researching the hearing for that interview, I reviewed some of the statements made by the front person for KISS, who declared that if you are against this bill, you are un-American. Now, I I I don't know about that. I mean, I you know, we'll talk about the respective interest in this bill, but that's that's probably a little bit exaggerated. He also erroneously said that uh our current copyright royalty structure is less favorable than even China or North Korea. If you want to raise somebody's hire in Congress, just uh mention those two countries. So what's going on here? The one thing I would say about this, and and and in particular the music industry, is that the equities of the music industry have always favored the most powerful stakeholders. That includes artists like Gene Simmons, who even in his testimony admitted that he had made a freaking fortune on the music industry, despite not having this public performance in the sound recording. And it favors these powerful stakeholders at the expense of the creators, the songwriters. So the one thing that we have to keep uh that that we at Srum Disney try to keep at the front of our mind is that in this town, the songwriter should have our primary focus and and have our primary uh sympathies. So that said, let's talk about what happens if this bill would be passed. The question here is if it did, who would benefit that? What what people would benefit from this? And does it benefit the people that the sponsors are claiming it benefits? So in addition to Simmons, a representative from the broadcast radio industry by the name of Henry Hinton, president and CEO of Interbanks Media, testified in opposition to the legislation. He said, radio is free to our listeners, but it is not free to those of us who provide it. Radio stations have to pay countless fees, including annual FCC regulatory fees, copyright royalties to performance organizations like ASCAP, BMI, and others, and collectives like Sound Exchange. Now, that is true, correct? They do have to pay those. We've already talked about the fact that that they have to pay ASCAP and BMI and CSAC for the use of the musical compositions. And they currently pay uh some digital performances uh to Sound Exchange. So they are paying those fees. But my question would be why shouldn't they be? Right? You're using the musical compositions. You're also using the sound recordings. So isn't this just a cost of doing business? But claiming that we shouldn't be paying the owners of the sound recordings to use their music is somewhat akin to, let's say, Tootsie's on Lower Broad in Nashville, a bar, saying to to the distributor of of all of its beer, we you know, we just aren't making enough money to buy your product. Why don't you just give it to us and we'll use it and and and we'll make more money? Now, they might not agree with my analogy, but I think you can see that it's pretty similar, right? If you're going to use the product of the recording industry, why shouldn't you be paying that? Shouldn't that be the one of the expenses in your on on your budget? Now, in in the other on the other side of the equation uh the equation, the sponsor, Senator Blackburn, told Hinton that you're actually harming musicians by not paying these performance royalties for sound recording performances. He said, You she said you've got an oldie station, and yet you've never paid someone like Sam Moore's estate a dime for Soul Man. So she's got a point there. So are Simmons and Blackburn correct, or is Hinton correct? Would this public performance right for sound recordings benefit the artists and the musicians who perform on the sound recordings? Or would it solely benefit the major conglomerates who produce the music and often acquire ownership of the sound recording copyright, as Dennis and I have talked about on a previous episode of this podcast? And the answer is it would actually probably provide a benefit to both of those parties here, because it seems like the intention of this legislation, from from what I've read, is that the performance royalties would be paid out similarly to how the digital performances are paid out through the collective known as sound exchange, and then distributed on the same basis as the digital performance royalties are being distributed currently. So if that's the case, and it appears to be, then yes, the artist and the musicians would in fact benefit from those royalties and make additional revenues that would be generated from the public performance of sound recordings. So it does appear to be a very favorable act in that regard. In addition, the the legislation specifically states the sound recording, uh the songwriter's royalty stream, the royalty stream paid by ASCAP, BMI, and CSAC that has been around the 20th century, is to be protected and will not be negatively impacted. It's got a very specific paragraph that says that, that this is not going to affect their royalty stream. And then on behalf of the other side, there are some concerns that are legitimate as well. What about Hinton's assertion that this is going to harm the radio, the radio industry? The National Association of Broadcasters, of course, oppose the addition of these royalties and say that it would negatively impact their industry. Similarly to Hinton, they say that imposing additional royalty fees, these performance royalties for sound recording performances on the broadcast radio stations would financially cripple many local radio stations, harming millions of listeners who rely on local radio for news, emergency information, weather updates, and entertainment every day. Now, the truth is the legislation actually takes that into consideration. It carves out special exemptions, or fail-safe, if you will, for certain types of local small broadcasters that fall under a certain revenue threshold. $1.5 million, I think, is the level below which there are certain provisions for these local broadcasters. And it also provides that the CRB, the copyright royalty board, should take into account these kinds of economic and competitive information when they set the rates for these sound recording public performances. So, all in all, given that the interest of the songwriters are protected in the Act, I would say it's about time that terrestrial radio started paying celebrities and musicians for their role in providing America with a steady stream of music and entertainment over the course of the past hundred years or so. For now, it's important to remember the old song from Schoolhouse Rock, the AMF is at least as of right now, still just a bill. You can hear that little little bill saying, I'm just a bill, yes, I'm only a bill. As we know, particularly in this Congress, the 119th Congress, just because a piece of legislation has been proposed, it does not mean that it's going to become law. Still a long road ahead. In fact, this um a similar piece of legislation was proposed by ESA back in 2022 under Joe Biden. And it's been floated, I think, in every Congress since then. And for the most part, those pieces of legislation died in committee. So stay tuned. We will update you if we hear more about this piece of legislation. In the meantime, in a couple of weeks, uh hopefully uh Mr. Disney will be feeling a little bit better, and we'll be providing you with another edition of Music Row Dealmakers. Until then, hit subscribe and tell your friends about us.

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Music Row Dealmakers is a production of Shroom Disney and Associates, recorded on location on Music Remote, the heart of Music City, Nashville. Subscribe to future episodes wherever you enjoy your podcasts.