Musicians have never reached more listeners, yet they often receive little from wide-spread consumption of their record music. Despite the explosive rise of digital streaming platforms, per-stream payouts remain notoriously small, and most artists earn only modest income from recordings. Many forces contribute to this inequity—label contracting practices, copyright law, and the economics of digital distribution—but the intersection of antitrust and labor law plays an underappreciated structural role in suppressing musician compensation.
Giants Atop the Industry
The modern music ecosystem is strikingly consolidated. Three major recording labels—Universal, Sony, and Warner—control most recorded music globally. A handful of major platforms also account for most digital music streaming, like Spotify, Apple Music, Amazon Music, and YouTube. The live performance industry is even more concentrated: Live Nation and AXS control ticketing, promotion, and many top venues.
With global music revenues projected to double to close to $200 billion by 2035, the music business is booming—except, that is, for the musicians who make it all possible.
Bargaining Power in the Era of Streaming
Historically, record labels relied on physical distribution networks—manufacturing plants, warehouses, trucking routes, and retail relationships—to bring albums to consumers. That infrastructure gave labels enormous leverage over artists, who lacked independent paths to market.
The emergence of digital streaming upended the logistics of the industry, but not the power imbalance. Platforms such as Spotify and Apple Music now function as the primary gateways for releasing music, allowing independent musicians to reach global audiences without traditional distribution. Yet even with expanded access for independent artists, structural dynamics continue to empower platforms and labels over musicians.
A central reason is that musicians, even those signed to record labels, are typically classified as independent contractors, not employees. There has long been a statutory “labor dispute” exemption to the antitrust laws that immunizes the collective bargaining of workers organizing over the terms and conditions of their employment. Since at least the Supreme Court decision in Columbia River Packers Ass’n v. Hinton, however, the statutory labor exemption has not been applied to independent contractors, exposing them to antitrust scrutiny if they engage in collective bargaining. In Columbia River Packers, the Court held that antitrust laws prevented an association of independent contractor fisherman from collectively organizing to refuse to sell fish to nonunion canneries. Courts have largely applied this case to mean that independent contractors fall outside of the “labor dispute” antitrust exemption.
As the music industry evolved from vinyl to streaming, this legal constraint remained unchanged, leaving most musicians unable to engage in collective bargaining with record companies and streaming platforms. There are, however, notable exceptions—most prominently the American Federation of Musicians (AFM), which has organized orchestra, film, and live-theater musicians since 1896. Best known for its 1942–44 “recording ban” strike, the AFM’s influence waned in the 1970s as many musicians were reclassified as independent contractors, anti-labor laws took hold, and the union struggled to organize pop artists. The AFM remains an important union today, but as its president has explained, its strength is cabined to genres in which musicians work for one or a few employers—unlike the vast majority of musicians who earn a living gig-to-gig as independent contractors.
Policy Shifts: Movement, but Only at the Margins
Recent policy efforts suggest a potential, though uncertain, shift in the legal landscape.
In 2023, federal lawmakers introduced the Protecting Working Musicians Act, which aimed to create a pathway for musicians to collectively negotiate directly with streaming platforms and offer new protections against AI misuse of music without licensing or compensation. Although never enacted, the bill reflected political recognition that musicians lack meaningful leverage in today’s market, and acknowledged the role that antitrust and labor law has played.
Then, earlier this year, under the direction of then-Chair Lina Kahn, the Federal Trade Commission published guidance that independent contractors who organize to improve their pay or working conditions generally should not face antitrust liability. This guidance—which does not carry the force of law—was a significant departure from the conventional view that independent contractors risk violating antitrust laws if they act collectively. However, citing Columbia River Packers, the FTC expressly limited its guidance to labor services, excluding situations in which independent contractors coordinate over the sale of a product—such as recorded music. Thus, while the FTC’s guidance appears to support some collective bargaining rights for musicians, it likely would not apply to musicians’ ability to collectively negotiate royalty rates for streams and record sales.
Further, current-Chair Andrew Ferguson’s prior dissent from the FTC guidance signals uncertainty about whether the FTC still supports its prior guidance. Without addressing its substance, then-Commissioner Ferguson opined that the FTC’s former leadership under President Biden should not be issuing guidance on the labor exemption “on its way out the door.” Even so, shortly after becoming FTC Chair, Chair Ferguson created a Labor Markets Task Force, whose priorities include fighting unfair and deceptive practices impacting gig economy workers, an initiative that may align with the FTC’s guidance.
Where Do Musicians Stand Now?
The future of musicians’ collective-action rights remains unsettled. While the FTC’s guidance has not been rescinded, it is limited in scope, does not have the force of law, and stands in tension with decades of judicial precedent that considered independent contractors outside the scope of protected collective bargaining. No court has yet embraced the FTC guidance, and until then, musicians classified as independent contractors may remain outside the collective-bargaining exemption to the antitrust laws, even for the music-labor services address in the FTC guidance.
As a result, musicians still find themselves largely unorganized, and the FTC’s guidance remains aspirational rather than transformative. Inspired by the 2023 SAG-AFTRA strikes, however, momentum seems to be building for music industry unions such as the United Musicians and Allied Workers, which strives to organize music workers across genres.
Whether meaningful change is coming—or structural barriers will continue to limit musicians’ bargaining power in an industry booming around them—will depend on how courts, agencies, and lawmakers interpret and reshape the boundaries of antitrust and labor law in the years ahead.
