Your Public Performance Rights

By Robert Brode
This week we continue our series on artists assets. The series
began with Artists House founder, and Grammy Award winning
producer, John Snyders article entitled, "The Magic of Copyright".
This was followed by, Your First Asset: The Right to Reproduce,
the first in a series of articles that examine the rights an artist is
granted upon creation of a copyright, and how these rights relate
to licenses.
We now move to another of the six exclusive rights granted to an
artist when they create a copyright: the right to perform the
copyrighted work publicly. One key point of this article, as it
relates to your overall sustainability as an artist, is that you must
affiliate with a Performance Rights Organization (PRO) in order to
avail yourselves of the financial and other opportunities associated
with the exclusive right of public performance. The three dominant
PROs in the United States are:
ASCAP
BMI
SESAC
Below you will find an explanation of what exactly these PROs do,
and how they relate to your work as an artist, but, again, in order
to benefit from your public performance right, you must affiliate
with one of the three.
Please read these articles in sequence, but if youd like to start
here, or if you just want a refresher, well begin with a general
overview of how copyright is created, and what rights you are
granted upon creation of the copyright.
To be a songwriter is a powerful thing. Once you write a song and
fix it in a tangible medium, you become the proud owner of a
musical work copyright. Your shiny new copyright comes with a
set of powerful exclusive rights. These rights, which can be found
in 106 of the Copyright Act, consist of the following: (1) the
right to reproduce the work; (2) the right to prepare derivative
works; (3) the right to distribute copies of the work; (4) the right
to publicly display the work; (5) the right to publicly perform the
work; and (6) in the case of sound recordings, the right to publicly
perform the work via digital audio transmission. *
If you've written a good song, others will want access to these
rights; however, copyright law, with some exceptions, prevents
anyone else from exercising these rights without permission from
and payment to you, the copyright holder. As a songwriter, the
quality of your songs generates attention but the copyrights in
your songs generate income.
Although there are two "music" copyrights, the musical work
copyright ("MWC") and the sound recording copyright ("SRC"), the
copyright of interest to the songwriter is the MWC and the
potential income streams it creates. These income streams
rightfully belong to the songwriter; yet, many songwriters,
uneducated in copyright, give these rights and accompanying
income streams away freely. This article will examine one of the
most valuable rights held by songwriters: the right of public
performance.
Relevant Parties
The Songwriter: The songwriter holds the copyright in his or her
musical work from the moment that work is fixed in a tangible
medium (e.g., recorded on a $4 tape recorder, on an iPhone, in a
million dollar studio, or written on the back of a cocktail napkin).
Though the exclusive rights begin with the songwriter, writers
commonly divvy up these rights and/or money generated there
from among a few different parties. We'll look at some of these
parties below.
The Music Publisher: Publishers are in the business of promoting
and monetizing musical works. Songwriters generally assign their
MWCs, in whole or in part, to a music publisher, along with the
exclusive right to administer the compositions (e.g., issue all
documents and collect all income related to the compositions
other than the writer's share of public performance royalties,
explained below).
Once the publisher obtains the right to administer a song, the
publisher will (one hopes) work to find parties interested in using
the song, license the song to those interested parties, and collect
the income generated under such licenses (a percentage of which
is kept by the publisher).
Performance Rights Organizations: Performance Rights
Organizations ("PROs") negotiate licenses for the public
performance of musical compositions, monitor usage of each
musical composition by licensees, and collect and distribute
income generated under such licenses. PROs do not take
ownership of the musical works they license; they merely
administer the public performance rights and royalties on behalf
of music publishers and songwriters.
What is a Public Performance?
The Copyright Act gives MWC holders broad and exclusive public
performance rights. The performance of a work includes both live
performances and transmissions of performances (whether live or
recorded). A performance is public if: (1) it occurs at a place open
to the public where a substantial number of persons, outside of
family and friends, gather; or (2) the performance is transmitted
to such a place; or (3) the performance is transmitted so that
members of the public can receive the performance at the same
or different places, at the same or different times.
Don't be discouraged by tricky legal definitions. Most music
performed outside the home in what most people would consider a
public setting (e.g., at a club, at a sporting event, at a concert
venue), or transmitted or broadcast to the public (e.g., via radio,
television, webcast, or stream) is a public performance that
requires a license from and payment to the MWC holder. **
Monies earned from licensing public performance rights are called
public performance royalties.
The Copyright Act also affords some public performance rights to
SRC holders but these rights are very narrow and therefore less
valuable. A SRC holder's exclusive public performance rights only
apply to public performances via "digital audio transmissions,"
such as satellite radio, cable systems and online streams or
webcasts. SRC holders, unlike MWC holders, are not paid for
public performances on broadcast radio, television, or at
nightclubs or sporting events.
PROs: Backbone of the System
Now you are ready to negotiate licenses with thousands of
nightclubs, arenas, radio and television stations and webcasters
for use of your musical works and collect payment for those
licenses!
You aren't?
Don't panic the task of negotiating public performance licenses,
monitoring usage, and collecting and distributing public
performance royalties is handled for songwriters and publishers in
the United States by three performance rights organizations:
ASCAP, BMI and SESAC.
Becoming a member of ASCAP or affiliating with BMI is quite easy
and can be done online at www.ascap.com or www.bmi.com
respectively. Membership requirements for each are fairly basic.
To join ASCAP, you must have written, co-written, or published a
song that has been:
1. commercially recorded (CD, record, tape, etc.); or
2. performed publicly in any venue licensable by ASCAP (club,
live concert, symphonic concert or recital venue, college or
university, etc.); or
3. performed in any audio visual or electronic medium (film,
television, radio, Internet, cable, pay-per-view, etc.); or
4. published and available for sale or rental.
The requirements for BMI are the same, except writers of works
likely to be publicly performed may affiliate with BMI.
ASCAP charges $35 per application, whether it is as a writer or
publisher. BMI does not charge writers but charges individually
owned publishing companies $150 and formally organized
corporations $250 to affiliate. There are no fees associated with
joining SESAC; however, SESAC, unlike ASCAP and BMI, is very
selective in their affiliations.
The most common type of license issued by the PROs is called a
blanket license. A blanket license allows a user, such as a TV or
radio station, to publicly perform all the works in that PRO's
catalog as often as desired for the term of the license. PROs also
grant per-program licenses and permit publishers and writers to
license directly to users should they choose. The PROs use
complicated formulas to calculate the appropriate sum to be paid
to each songwriter and publisher based on the money collected in
a given year and the number of public performances of a
particular song. Each PRO calculates the value of each public
performance differently, so co writers of a song belonging to
different PROs may receive checks in different amounts.
PROs calculate the number of public performances for any given
composition through various survey and sampling methods.
Translation: Not every public performance is accounted for, so
your royalty statement may not account for the one spin your
song received at a small radio station in rural Mississippi before
the sun came up on a Tuesday morning in December.
PROs divide public performance royalties equally between the
songwriter (the "writer's share") and publisher (the "publisher's
share"). If you don't have a publishing deal, you should join your
chosen PRO as a writer AND a publisher, and collect both the
writer's share and the publisher's share. BMI makes quarterly
payments while ASCAP makes separate quarterly payments for
domestic and international royalties for a total of eight payments
in a calendar year.
Value Your Rights
Now that you've seen just a small example of how valuable your
rights can be, I hope you'll be very careful before signing a
contract transferring any of those rights. Most of the players in
the music industry require use of the exclusive rights held by
songwriters and music publishers to function. A radio station can't
play a song unless that song is licensed by the MWC holder (or, as
you just learned, by a PRO on behalf of the copyright holder). A
producer of a television show can't use copyrighted music in his/
her television show without a license from the MWC holder and no
television station can broadcast that producer's show featuring the
copyrighted music unless the station obtains a public performance
license for the song with the MWC holder's PRO. A record label
can't release a recording of a previously unreleased song to the
public without permission of the MWC holder.
Take note of the power you hold as a songwriter. Remember that
your work is valuable. With a bit of luck, a good song will make
money. If you're knowledgeable about your rights, you can ensure
that money goes into your pocket, where it belongs.
Please feel free to post questions as comments,
and we'll do our best to answer them
*Note the sixth right applies to the public performance right held
by sound recording copyright holders and does not directly affect
the songwriter as a musical work copyright holder.
**Certain public performances of musical works are exempt from
the generally applicable licensing and payment requirements.
Movie theaters (in the U.S) are exempt from obtaining and paying
for licenses to publicly perform music heard in films shown in
their theatres. Public performances of musical works in
educational settings or religious services do not require public
performance licenses. A small business communicating a
transmission of a radio or television broadcast does not require a
license to do so if the establishment meets certain requirements
relating to the type and size of the business and the placement
and number of loudspeakers, among others. 17 U.S.C. 110.
Robert Brode is an attorney who practices entertainment law
with the law firm of Stone Pigman Walther Wittmann, LLC in
New Orleans, LA. Mr. Brode graduated magna cum laudefrom
Tulane University School of Law in 2007. Before becoming a
lawyer he worked for record labels, record distributors and
record retailers in addition to time spent as a music journalist
and television show host. He teaches Introduction to Music
Business at Delgado Community College, is an active member
of the Recording Academy and serves as a judge for the
Entertainment Law Initiative.