The Protect Working Musicians Act of 2023 Explained

Sammi DietrichNews & Insights

The Writer’s Guild of America (“WGA”) and the Screen Actors Guild-American Federation of Television and Radio Artists (“SAG-AFTRA”) garnered national attention when they went on strike to advocate for their employment demands this summer.[1] Although not currently striking, independent musicians are also fighting for their ability to collectively bargain with large entertainment companies for better pay and other music licensing terms.[2] Presently, there are statutory limits for independent contractors, including independent musicians because they are considered business entities and thus run the risk of violating antitrust laws if they unionize.[3] The proposed Protecting Working Musicians Act of 2023 (“PWMA”) would relieve independent musicians from those antitrust liabilities by allowing them to collectively negotiate with “Dominant Online Music Distribution Platforms” and generative artificial intelligence companies for more favorable music licensing agreements.[4] If passed, this bill would provide independent musicians with leverage in bargaining agreements with music companies.  

Some legislators claim that the current relationship between musicians and music service platforms is imbalanced, as service platforms use their market power to “force music creators into licensing agreements that do not reflect market value.”[5] Labels have more bargaining power than individual artists because they own large music catalogs that are more valuable to digital streaming platforms (“DSPs”) like Spotify. [6] While a DSP will not experience a meaningful financial impact when one independent artist leaves the platform, the same DSP likely will bear a financial loss if a record label or major artist opts out of its platform.[7] As currently structured, independent musicians hold little to no bargaining power with DSPs and music labels.[8]

Some musician unions exist in the United States.[9] However, antitrust laws restrict their ability to negotiate for better pay and hiring practices.[10] The Sherman Act prohibits “conspiracies that unreasonably restrict trade.”[11] The Clayton Act works in tandem with the Sherman Act to prevent “business practices that may harm competition. . . .”[12] These laws essentially prohibit business entities from engaging in illegal collective action.[13] Independent musicians are considered business entities as opposed to employees.[14] Accordingly, independent musicians who collectively bargain for higher payouts and other employment benefits risk violating antitrust laws.[15] 

The PWMA was originally introduced to Congress in 2021 to combat these limitations.[16] In 2021, independent musicians faced the same issues they face today––despite high streaming revenues, they received limited payouts, and their royalty rates declined.[17] The revised 2023 PWMA outlines rights for independent musicians who own the copyright to their sound recordings and either qualify as a small business or earn less than $1 million per year, by permitting them to collectively negotiate for more pay from DSPs.[18] Further, the updated text extends these same collective negotiation provisions with generative artificial intelligence companies.[19] The law is unsettled regarding generative AI and songwriting rights, so the full impact of AI on musicians’ rights has yet to be seen.[20] However, allowing independent musicians to collectively bargain with these tech companies could put independent musicians in a better position to address new developments as they arise.[21]

One limitation on the PWMA’s scope is that the language of the bill specifies that it applies only to collective bargaining with “Dominant Online Music Distribution Platforms or [companies] engaged in development or deployment of generative artificial intelligence[.]”[22] A Dominant Online Music Distribution Platform is defined as an entity that “operates an app, website or other online service that is used by members of the public to listen to sound recordings,” has annual distribution revenues of more than $100 million, and is not eligible for a license under applicable statutes.[23]

The provision regarding AI is less clear and indicates that the PWMA would protect musicians’ bargaining rights with companies “engaged in development or deployment of generative artificial intelligence.”[24] Given ambiguities in what sort of company would fall into this category, it is unclear the exact impact such guidance would have on independent artists. 

The PWMA is still in the early stages and is not guaranteed to be enacted. In the interim, at least one federal agency has spoken out in support of independent contractors. The Federal Trade Commission (“FTC”) stated that it will no longer enforce restrictions on independent contractors who engage in collective action for the purposes of procuring better pay and working conditions.[26] “In an ideal world, Congress would step in and clarify this in statute,” said FTC Commissioner Alvaro Bedoya.[27] “Eventually, there will be a new administration . . . [a]nd so the only way to try and enshrine clear protections for [independent] workers is to do that in statute.”[28] Accordingly, the PWMA may serve as Congress’s best solution to preserve those protections for all musicians.


[1] August Brown & Kenan Draughorne, Musicians Deal with Stingy Streamers and AI Threats Too. So Why Aren’t They on Strike? LA Times (July 26, 2023), https://www.latimes.com/entertainment-arts/music/story/2023-07-26/musicians-sag-aftra-strike-wga-actors-writers.

[2] Id.

[3] Dan Papscun & Khorri Atkinson, Antitrust Shield for Independent Worker Action Gains Momentum (May 9, 2023), https://news.bloomberglaw.com/antitrust/antitrust-shield-for-independent-worker-action-gains-momentum.

[4] Protect Working Musicians Act of 2023, H.R. 5576, 118th Cong. (2023).

[5] Id. at § 2.

[6] Id.

[7] For example, Spotify’s revenue dropped when Taylor Swift removed her catalog from the platform. See Jack Linishi, Here’s Why Taylor Swift Pulled Her Music from Spotify, Time (Nov. 3, 2014), https://time.com/3554468/why-taylor-swift-spotify/.

[8] Dylan Smith, A2IM-Backed ‘Protect Working Musicians Act’ Aims to Help Indie Musicians ‘Negotiate with Dominant Steaming Platforms, Digital Music News (Oct. 26, 2021), https://www.digitalmusicnews.com/2021/10/26/protect-working-musicians-act/.

[9] Brown & Draughorne, supra note 1.

[10] Id.

[11] The Antitrust Laws, U.S. Department of Justice (Aug. 31, 2023), https://www.justice.gov/atr/antitrust-laws-and-you#:~:text=The%20Sherman%20Antitrust%20Act,or%20markets%2C%20are%20criminal%20violations.

[12] Id.

[13] Dan Papscun & Khorri Atkinson, supra note 3.

[14] Jo Vito, New Bill Would Help Independent Artists Collectively Negotiate with Streaming Platforms, Consequence (Sept. 19, 2023), https://consequence.net/2023/09/protect-working-musicians-act-bill/.

[15] Id.

[16] Smith, supra note 8.

[17] Id.

[18] House Bill 5576 § 3.

[19] Id.

[20] Marc D. Ostrow, The Wild West of AI-Generated Music: What Rules Rule?, Romano Law (July 26, 2023), https://www.romanolaw.com/the-wild-west-of-ai-generated-music-what-rules-rule/.

[21] Vito, supra note 14.

[22] House Bill 5576 § 3.

[23] Id.

[24] Id.

[25] Assemb. B. 2257 § 2780 (a) (1), 2020 Leg., (CA 2020).

[26] Dan Papscun & Khorri Atkinson, supra note 3.

[27] Id.

[28] Id.