They Made it Big After a Tragedy — But are Still Fighting for Royalties

J
ohn Slavin was in the green room when he heard some great news that made no sense. An old buddy of his was playing a show in Austin, and the scraggly-bearded Slavin, also a musician, showed up. But all the friend wanted to talk about was Slavin’s old indie rock band, Blue Smiley.

“Have you seen your numbers?” the friend asked, referring to Blue Smiley’s Spotify streams.

Slavin said he hadn’t. In fact, up until that night in 2022, he’d made it a point to avoid pretty much anything related to his old music project from Philadelphia. So he was shocked when his friend pulled out his phone, pulled up the Spotify app, and showed him that Blue Smiley had, at that point, eclipsed 150,000 monthly listeners. One of the songs had over a million streams.

Slavin’s first thought was “What the fuck?” His second was, “It looks like I have some shit to figure out.”

There are many reasons this news surprised him. For one, he and his fellow bandmates never expected to earn success or fans or millions of streams. Playing shows in Philly with people they loved was more than enough. Plus, between 2017 and 2022, Slavin says he only listened to his old band’s music “two or three times,” and only when he was drinking “and in a hole emotionally.”

In October 2017, Blue Smiley’s frontman and Slavin’s longtime friend Brian Nowell died from a fentanyl overdose. The death shook the Philly music scene and devastated Nowell’s friends and bandmates, many of whom struggle to talk about their friend.

“I’m still dealing with it,” says former Blue Smiley bassist Mike Corso, who now lives in Connecticut, not far from where Nowell grew up. “Up until that time, I really felt like I had a bigger purpose and a fire under me. Doing something that people were relating to; that felt good. After that, his death kind of burnt a fuse in me.”

Yet this newfound streaming success was a catalyst for Slavin, Corso, their bandmates, and Brian’s father, Ken Nowell. No one was receiving any kind of payment for these streams, and meanwhile, the numbers continued to climb. Slavin dashed off a Facebook message to Ken:

“I’m not sure if you remember me, but I was a very good friend and roommate of Brian’s for years,” he wrote, before sharing the good news. “It’s a beautiful thing — the music has organically grown over the years, and there are hundreds of thousands of monthly listeners connecting to your son’s lyrics.”

Maybe, Slavin reasoned, we should talk about royalties.

That message kicked off a three-year odyssey of red tape and “retraumatizing” that continues to this day. Slavin, Ken, and Co. have fought multiple entities for multiple kinds of royalties, and most recently, they’ve faced their biggest hurdle yet:

A mysterious person going by the name “Eldde Simon” claimed credit for all of Blue Smiley’s songs using the Mechanical Licensing Collective, which distributes a specific kind of royalty from streams. For months, the band assumed this potential fraudster had made off with tens of thousands of their dollars — and claimed ownership of music they’d come to love even more.

But this story is about more than potential fraud. It’s a story of how loss and music can stretch through the years, shaping the lives of everyone they touch. It’s the story of an analog band that couldn’t have attained its modern success without the help of an increasingly isolated, algorithm-driven world. And it’s the story of a kid named Brian, who wanted to make music with his friends.

It’s 7 a.m. on a midwinter Saturday in Torrington, Connecticut (population: 35,000). In a couple of hours, families will go ice fishing on a frozen lake surrounded by epic, sky-grazing trees. But for now, Ken Nowell seems to have the world to himself. He’s worked as an accountant in Torrington for decades, but this morning, he’s poring over a unique set of numbers. His eyes are glued to his work computer, where Blue Smiley plays on a loop every day, Monday through Saturday. Ken knows the precise day the band hit its all-time listener mark, and when the numbers fluctuate, his mood sours, prompting a call from Slavin to try and cheer him up.

“The day Brian passed, I think 83 people listened to Blue Smiley,” he says, combing through his notes.

Now, their top song is “Flower”: a one-minute-and-15-second showcase of the band’s grunge leanings. It has over 30 million streams, a number that astounds the stoic Ken. But that’s not the number he keeps coming back to.

“Usually, right around my son’s birthday, 80,000 people will listen on that day,” he says. He calls Blue Smiley’s music “Brian in musical form. He has his upbeat, giddy, reckless style, and then you get the emotional Brian jumping in at various moments.”

By his own admission, Ken was something of a helicopter parent. Even though Torrington is a small town, he felt fiercely protective of his son.

“When he was little, he was all we had by design. When he was born, and we learned it was a boy, my wife decided that’s it. We’re done.”

Sometimes his protection spilled out into the public. When 10-year-old Brian came home with an assigned reading that Ken thought was inappropriate for kids that age, he raised the issue with the local Board of Education. As Ken recalls it, he was “unanimously compared to a book burner.”

At that point, Brian was already showing signs of interest in music and writing. He went on to form and sing in an eight-person high school ska band called Beat It With a Brick. And when his parents weren’t around, he rebelled however he could.

Dave Pashley, a childhood friend, remembers running around Torrington with Brian and setting off fireworks atop different buildings. Another time, during a kayaking trip at a nearby lake, Pashley and Brian traveled out to a small island where a house had burned down, leaving only its chimney. They were fascinated by these charred remnants, so they stayed for two hours, only realizing later that Ken was yelling for Brian the whole time, eager to get his son back before nightfall.

What sticks out most to Pashley, though, is Brian’s obvious musical talent. They played together in Beat It With a Brick, where Brian’s natural instincts for creating interesting sounds put him in a different league than everyone else. Then the pair started a “joke hardcore band for a hot minute,” but it was really only half a joke: Brian wanted to be on stage, so they’d crash Connecticut shows in the hopes that a band would let them on. Usually, they would.

“It was always just super clear to me that Brian just had an ear and also just wanted to be a part of that community,” Pashley says.

Pashley stayed in Connecticut for college, but in 2009, Brian went off to Temple University in Philadelphia. That’s where he got close with Slavin, a fellow jazz trumpet student who also played bass. Then, a few years later, Brian told Slavin he was making some demos and thinking about starting a band.

“What do you think?” he asked Slavin.

Emily Daly lived with Brian around that time, in a part of Philly she calls “not a great area.” She remembers Brian throwing an extension cord out the window so the drug dealers on their stoop could charge their phones while selling crack. She also remembers her old roommate casually talking about a band he had formed.

“He never talked about it like it was a very serious career path or project or anything,” she says. “I think it was really just him having fun with his friends.”

Even back then, before their millions of streams, Philly embraced Blue Smiley. It helped they played every show they could, and in turn, Brian was a mainstay at local shows across the city. They are now considered one of the seminal “shoegaze” bands in a city known for its shoegaze music — even if they never used that term.

“Philly was the only place this could have happened,” says Corso, who took over on bass after Slavin moved away. “There were many bands we would share bills with. Playing shows was like a constant exchange of ideas and understanding of what was happening.”

Corso notes that the band already had some momentum by the time he joined, although their popularity was still largely confined to the Philadelphia music scene. They recorded their second of just two albums, called “return,” in a “gritty, kind of warehouse space in west Philly” called Sex Dungeon, and Brian rarely told Corso or drummer Matt McGraw what to do.

“I think the organic nature of the rhythm section is important,” Corso says. “It’s human, there’s mistakes and imperfections. It’s a bit of a jazz mentality, and that’s part of what makes it sound good.”

Ken called Blue Smiley “Nirvana meets the Beach Boys,” and his son hated that. Even still, it’s impossible to look at the dozens of photos hung on Ken’s office walls and not notice Brian mimicking Kurt Cobain: long, unkempt, dirty-blond hair. According to Pashley and Slavin, Nirvana was an obsession for Brian, who was always prone to go “all in” on his hobbies and causes, be it veganism, Nirvana, or the music of Elliott Smith. He would chase down every morsel of information he could: records, biographies, interviews, all of it.

“We listened to all of the records Elliott Smith released, but then there were all these really cool unreleased tracks, and we talked about how they were different from the others,” Pashley says. “There was something sort of mysterious about how his time ended, but his music lives on, and that’s his legacy.”

Now, Pashley says, you could say the same thing about Brian.

He was “straight-edge” for years, friends say. But eventually drugs and alcohol became a regular part of his life. In 2017, the night before he died, Brian had dinner with his parents. He told them about plans for a Blue Smiley tour that would hit several cities throughout the country, then Ken and his wife dropped him off at a party at Drexel University. The next morning, they got a call from the police in Lansdowne, a suburb of Philly. Ken knew what it was.

“If he had just gotten himself hurt, it would’ve been a call from the hospital,” he says. “If he had gotten arrested, he probably wouldn’t have called us.”

He pauses while recounting this story. He leans back in his office chair, and runs a hand through the thin tufts of silver hair on either side of his head.

“I wouldn’t wish that on anyone,” he says.

It’s difficult to explain why Blue Smiley became popular years after playing their final show or releasing any music. But the people interviewed for this story float several theories.

First, the band was unknowingly ahead of its time by making all of their songs under three minutes, perfect for easy streaming and short attention spans. There’s also the morbid curiosity about Brian’s death. However, many fans are still unaware of the band’s backstory. Just as you can go on YouTube, TikTok, and Reddit and find people describing Brian as “an icon,” “a genius,” “a legend,” you can find plenty of people with no clue about Brian’s death, wondering when Blue Smiley will make more music.

There’s also a shoegaze revival happening, thanks in part to TikTok. Aided by algorithms, young fans are discovering music from the 90s, 2000s, and 2010s, some of which never attained a mass audience until now. 

But the truth behind Blue Smiley’s seemingly random success may be simple: They’re good.

“I think they had a really cool sound,” says Bissie Loux, a Philly-based digital artist who knew many members of the band. “When there’s death, that just draws a ton of attention to a project because it makes it more special, but they’re just a really good band. I think it ultimately came down to that.”

Still, the world is full of great bands who never attain this kind of following, let alone spawn acts who call themselves “a Blue Smiley worship band” (as the buzzy Philadelphia band They Are Gutting a Body of Water, often known as TAGABOW, does).

Molly Moltzen, an Austin-based writer and friend of Slavin’s, spent roughly a decade managing bands in Boston, a job she now compares to being “a glorified babysitter.” When Slavin told her about Blue Smiley’s streaming numbers, she made sure to remind him, again and again, how lucky he is.

“You’re really the exception,” she told him. “It almost never works out this way.”

Slavin knows he’s lucky, but once he, Ken, and Corso started hunting for their royalties, they realized they were in for an uphill battle.

Music royalties are maddeningly convoluted, and artists and music attorneys interviewed for this story admitted that even they struggle to understand the finer details. For Blue Smiley, the search boiled down to recording royalties, performance royalties, and something called mechanical licensing royalties, which are paid to writers based on the number of streams on Spotify and other services.

Here’s where it starts to get difficult.

Whenever a Blue Smiley fan or new listener used Spotify to stream the band’s music, both performance royalties and mechanical licensing royalties were being accumulated. However, in the U.S., only the Mechanical Licensing Collective (MLC) can pay the latter type of royalty when they’re accrued through streamers like Spotify, and the MLC didn’t exist when Blue Smiley was a band. Blue Smiley relied on cassette tapes (which they mostly gave away for free) and Bandcamp to publish their music, making them, as Slavin jokingly says, “independent to a fault.” That said, Brian had also uploaded their music to Spotify via a British distribution service called RouteNote. Ken remembers his son getting $40 or so a month while he was alive. (“Just enough for a tank of gas every now and then,” he says.)

Since Brian’s PayPal account was eventually deactivated due to inactivity, RouteNote had no way of paying the thousands of dollars Blue Smiley started accruing as streams accumulated. So, for the first of many times, the band presented their frontman’s death certificate to access money that eventually came in fits and starts.

“They took several months to get caught up with us, only depositing about six months’ worth at a time, then four months, then two months as the monthly payments got larger,” recalls Ken. (RouteNote did not respond to multiple requests for comment.)

Though Slavin hated the red tape and the cold formality of submitting his friend’s death certificate — a step he says “retraumatized” him — seeing that certificate also brought him some small measure of clarity.

“To be totally honest, for years, I was really mad at Brian for dying,” he says. “That was a lot of what my grief felt like, and so it was really hard for me to approach the music or even the conversation with a lot of people.”

Old Philly friends would tell him “Blue Smiley was the best,” and inside, he’d think, “Well, it’s fucking bullshit. It’s worthless now.”

Then, when he saw the certificate, it confirmed Brian’s death was an accidental overdose. The anger melted away, eventually giving way to a dogged passion for getting the music in front of more listeners. The band formed an LLC, signed up with a record label for the first time, and released some merch and vinyl. As they saw it, the final hurdle was the MLC — and they thought it’d be an easy one.

One day, during a lull in his nine-to-five job last year, Slavin created an MLC account and tried to register Blue Smiley’s songs. He discovered that someone else had already done so, back in 2021. It wasn’t their publisher or anyone else affiliated with the band. Apparently, it was an impostor.

This isn’t the first time a bad actor has used the MLC to claim work that’s not their own. Stephen Carlisle, a copyright attorney, told Rolling Stone someone claimed credit for music belonging to his client, who, like Brian, had passed away. In Carlisle’s case, when the impostor was called out, they “rolled over” and relinquished the claim right away.

For Blue Smiley, it was much more complex.

The band engaged in a monthslong dispute with Simon, who did not respond to multiple requests for comment from Rolling Stone. It wasn’t until February of this year that the MLC shared in writing that Simon hadn’t, in fact, collected any royalties. (The MLC told Rolling Stone it had already flagged irregularities and suspended the royalties before Blue Smiley reached out, though the band says they were never made aware of that action.) That hasn’t stopped Simon from claiming credit for other artists’ music. Via the MLC’s database, Simon has claimed credit for 33 other tracks by multiple artists, including a song by the Orlando-based artist Suissidee.

“They had no part in working on that song,” Suissidee tells Rolling Stone. “It was just me and my friend.”

Simon has also claimed credit for many songs by the artist Nuvfr, who told Rolling Stone, “I don’t know who Eldde Simon is.” 

This apparent imposter isn’t the first person to try to game the music industry. Last year, the U.S. Justice Department indicted a North Carolina man named Michael Smith for using AI to create hundreds of thousands of songs, then employing bots to stream the songs billions of times. This scheme netted Smith over $10 million in royalties before he was caught.

While these stories underscore how the music industry is ripe for fraud, experts say the bigger issue is the extreme level of difficulty facing indie musicians. Without lawyers, managers or in-depth technical knowledge, indie artists must navigate labyrinthine processes to claim their music and hope they can get some money in a timely fashion.

“In our case, the choice is either pay a lot out of pocket to collect an undetermined amount, or give someone who has nothing to do with the music partial ownership over a percentage of our music,” Slavin says. “To me, this is the crux of the problem. The goal is to keep full ownership for the integrity of the work and memory of Brian and not bankrupt ourselves in the process.”

Jeff Price, a music industry veteran who has worked with Metallica, Bob Dylan, the Red Hot Chili Peppers, and many others, put a finer point on it.

“The whole system is set up to require an intense knowledge of copyright law in the United States, along with technical capabilities and an ungodly amount of persistence with constant auditing,” he says.

Price argues that the issue facing Blue Smiley and an untold number of other musicians dates back to before the creation of the MLC, when Spotify “flipped the business model” by launching its platform without licenses in place for every song. At the time, songs were streamed without the proper mechanical licenses, which was especially harmful for independent artists. Then the same law that led to the formation of the MLC gave Spotify and other services a blanket license to stream music. As Price puts it, this method is akin to starting a streaming service that’s home to every movie in the world, then only paying Disney if they ask for their money. He’s had clients with much larger followings than Blue Smiley who wait months, even years, to receive the money they’re owed.

Other experts and attorneys defend the MLC, citing the hundreds of educational webinars they’ve offered to reach artists, as well as the fact that royalties — and the music business at large — were set up to benefit the biggest players long before the MLC came around. In fact, the MLC is trying to stand up for artists, they say. One example: The MLC recently sued Spotify, alleging that the streaming service is attempting to reduce mechanical royalty payments by using “premium” plans to bundle audiobooks and music. When the lawsuit was announced, MLC CEO Kris Ahrend noted that the MLC, “is the only entity with the statutory mandate to collect and distribute blanket license royalties and take legal action to enforce royalty payment obligations.”

In late January, a judge ruled in favor of Spotify.

To Slavin, it’s clear indie or self-published musicians are simply not valued within the current ecosystem.

“It feels like they want you to have a publisher that you have to pay your own money to,” he says. “They really don’t want you to be fully independent, even though there’s all these claims that they do.”

Corso, meanwhile, doesn’t want people to read this and think he and his friends are about to get a windfall. (It’s not “quit-your-job money,” Slavin says.) Rather, he sees this as an opportunity to reclaim a bit of their friend’s legacy. Brian wouldn’t have cared about the money, Corso points out. But he wouldn’t have wanted someone else to be credited for him and his friends’ work, and he’d want more people to discover what they did together.

“I feel antiquated,” says the 37-year-old Corso. “I feel past the expiration date in many ways. I’m not connected to this anymore, you know? This is the past. When we were a band, we were just a small-time band. I don’t understand the modern era.”

For him, the music can sometimes feel like a relic from a lost era: a time when Philly was both vibrant and affordable. Rent was well under $1,000; you could make a living as an artist. Royalties didn’t matter, because gigs were enough.

Now he’s living in Connecticut, not far from Torrington. He’s started playing more classical guitar, and he finds himself “playing around with Brian’s style: “His right-hand picking was relentless, and he had a unique vocabulary of chords in the left hand.”

“I’m trying to sort it out,” Corso adds. “I still have a shred of hope.”

Ken agrees with his son’s former bandmates that Brian wouldn’t have cared all that much about the money. But he’s glad they’re pursuing the royalties, and once they finally get paid (which they hope happens soon, now that the dispute is resolved), Ken says they’ll be donating some of the money to arts nonprofits in Philly and New Haven, as well as homelessness outreach organizations (another passionate cause of Brian’s).

Ken explains all of this while cycling through Spotify numbers in his office, though he eventually moves over to one of many Reddit threads discussing Blue Smiley.

Someone commented, “Who?”; Ken downvotes the comment.

“This guy says ‘Awesome sauce,’” he says, pointing out another comment. He upvotes that one, along with another that begins, “One of my favorite bands of all time.”

Then he keeps scrolling, while Blue Smiley plays in the background.