Behind every great song is a group of invisible artists whose talents often go unnoticed. These industry pros, called session musicians, are seen as hired guns brought in to lay down a few tracks, get paid a one-time studio fee, and then split. Should the songs they help record become hits, they don’t typically receive the same fame and fortune as the big-name performers they back. But a recent class-action lawsuit with North Texas roots sought to help these behind-the-scenes artists recover their just dues.
On April 16, a New York federal court gave preliminary approval to a settlement allocating over $46 million in undistributed royalties to over 60,000 session musicians. The class-action lawsuit — filed by five Texas session musicians acting as core plaintiffs represented by Eric Zukoski, of Quilling, Selander, Lownds, Winslett, & Moser, as intellectual property counsel and Roger Mandel, of Jeeves Mandel Law Group, as class action counsel — serves as the single largest recovery ever to benefit session musicians.
Copyright laws can be perplexing, especially with the ever-changing landscape of digital platforms. For recording artists, U.S. law exempts terrestrial radio and television from copyright royalties, but these exemptions do not apply to recordings played on digital, noninteractive platforms like the internet, satellite radio, and audio-only cable TV stations.
Unbeknownst to most session musicians and backup singers, provisions of the Digital Performance Right in Sound Recordings Act of 1995 and the Digital Millennium Copyright Act state that 5% of the royalty revenue earned from digital plays is owed to “nonfeatured performers” like themselves. Their portion may not seem like much, but for hit songs, the royalties add up.
Zukoski had a unique, firsthand perspective on the matter. As a lawyer and seasoned bass player with over 5,000 professional performances under his belt, he knew that fellow session musicians in his circle were often unaware of the royalties due.
It was a conversation in 2016 with Dallas harmonica player Paul Harrington (featured on Pitbull and Ke$ha’s “Timber”) that spearheaded the case. Harrington said he heard the popular single played everywhere, even at a Cowboy’s game but only received a small, one-time payment for his work. Zukoski offered to look into it for him and found that the harmonica player was owed a sizable check.
“When he told me the amount, I fell on the floor, literally,” Zukoski says. “It was well into five figures.”
Harrington and the remaining four plaintiffs, Clay Pritchard, Chaz Marie, Kessie Lowe, and Jon Blondell, filed the case in 2017 against the union-led AFM & SAG-AFTRA Intellectual Property Rights Distribution Fund. The fund, in charge of distributing collected royalties, previously left residuals unclaimed by nonunion artists.
Stipulations of the settlement also require the fund to increase awareness of owed royalties through marketing and streamlining the process of locating artists for distribution. Artists can check if they have any unclaimed royalties at afmsagaftrafund.org.
The settlement, finalized this month, comes at a time when session musicians are feeling the financial squeeze of the COVID-19 pandemic. As recording slows and live gigs come to a halt, getting an unexpected check in the mail could help artists make ends meet during a difficult time. Harrington credits Zukoski as a champion for session musicians.
“The law had been in effect for quite a while, but nobody had dug it up,” Harrington says. “Nobody had the moxie to look into it — but Eric figured it out.”
Jessica Strange
Roller-skating-enthusiast, taco purist, and part-time social media manager for her goldendoodle. A little Linda Belcher, a little Lisa Frank. And yes, she knows her name is strange.
