In 2016, I was one of three songwriter witnesses at Copyright Royalty Board trial in the James Madison Memorial Building in Washington DC. My friends and colleagues Liz Rose and Lee Thomas Miller testified as well. This trial was called Phonorecord III and would set Mechanical Royalty rates for songwriters and publishers for 2018 through 2022. We went through hours of witness prep with high powered DC lawyers but were not allowed to hear any other witnesses’ testimony on that day. The judges were not music folks. The three were experts on economics, history, and copyright precedent since 1909.
Not my first rodeo, I had also testified in 2006, that trial focusing more on disputes with record labels. For that trial the RIAA subpoenaed every contract and royalty statement I’d received since I was 17 years old. (My first pub contracts and a NY record deal.) On the evening before that trial, my wife and I were trying to relax at our DC hotel bar when a legal aide plopped an 18” high stack of documents in front of me and announced, “I have to share all the information you may be questioned about tomorrow.” Daunting to say the least. They were ready to play rough.
But this trial in 2016 was between the DSP’s, Spotify, Apple, Amazon, Tidal, etc. vs. the NSAI and NMPA. Publishers were the head, songwriters the heart. The rules in 2016 were very specific and not friendly to our side. The judges would not hear any information about the whole music ecosystem. No comparisons of the Sound Recording Royalty and the Song royalty. That rule change was, by the way, one of our most significant victories when the MMA passed a few years later.
After a few hours in a waiting room outside the courtroom I was called in. The room had at least seven or eight teams of 3 or four DSP lawyers each. Our side at that point was me and 2 of our attorneys. The judges questioned me for about 45 minutes, about the loss of songwriter income in the streaming era, about the number of writers who had to quit or get second jobs, all of this familiar turf for a professional songwriter. The judges were stiff but respectful.
When my testimony was over, the female judge said “Mr. Bogard, is there anything else you’d like to share with this court?” I had nonchalantly carried my “Little Martin” guitar up to the stand with me without asking permission, figuring if anyone noticed, they’ say something. They didn’t.
So, I said, “Yes, your honor, I’d like to play you a song.”
The mumblings and mutterings among the teams of lawyers was a quiet rumble, but they seemed frozen, not wanting to look like music haters.
So, I played the first verse and chorus of “Carrying Your Love With Me” from the stand. Then I held up my. Phone, cued to the 2nd verse of George Strait’s wonderful recording. When the song was over, I turned to the three judges and asked, “Do you think the work to make this great George Strait record is worth 10 to 17 times the work it took me and my co-writer to WRITE the song out of thin air?”
The judge nodded and quietly said “Point taken, Mr. Bogard, thank you.
Writers and publishers won a 44% raise in mechanical streaming royalties at that trial, the largest increase I history.