[cc-community] What about ASCAP?
nsincaglia at musicnow.com
Wed Jul 20 13:28:37 EDT 2005
I would like to comment on the U.S. situation. I think there is some
mis-information on this thread that needs to be cleared up in order for
this discussion to be useful.
Before I make a comment on the issue, I wanted to establish a few things
The author of the composition owns the copyright to his composition.
That author can sign a contract with a publisher. Typically composers of
musical works hire publishing organizations to manage, track and license
their musical compositions on their behalf. In signing a contract with a
publisher, the composer agrees to some percentage split of revenue which
is generated from that composition.
Public Performance Royalties:
Organization such as ASCAP, BMI and SESAC are performing rights
organizations. If a song gets played in public (in nightclubs, at live
concerts, on the radio, on television, etc.) the copyright owner of the
musical work is entitled to payment for the performance of that song. In
order to collect performance royalties, the composer needs to register
as a member of a performance rights society, which will collect all
royalties from the public performance of the composition. Performance
rights organizations are not traditional music publishers and are only
involved in the collection of performance royalties. Revenues collected
through public performance royalties are distributed to according to the
ownership percentage for each composition indicated when one signs a
contract with a performing rights organization. So if you have a 50/50
split with your publisher for a certain compositon, the performing
rights organization would send the composer personally a check for 50%
of the revenue generated from the composition's public performance and
50% to the publisher in which the composer has indicated he has signed a
Mechanical royalties are fees paid to the copyright owner (usually the
songwriter and/or the music publisher) for the right to reproduce the
song on a recording. In the U.S. there is a statutory royalty rate (also
referred to as a compulsory license) set by the U.S. Copyright Act that
provides that once a song has been commercially released, any other
artist can record and release their own version of that song in any
audio-only format without the copyright owner's permission so long as
they pay the copyright owner or copyright owner's publisher for every
copy of their version of the song that is pressed and distributed. The
current mechanical statutory rate in the U.S. is 8.5 cents.
Finally, here are my comments on the issue. First, there is no
compulsory license in the U.S. in regards to performing rights which
ASCAP represents (only a mechanical statutory rate).
Secondly, I question, and I think the music industry in general
questions whether ASCAP (or BMI or SESAC) has any right at all to
request public performance royalties for podcasting. Both ASCAP and BMI
have publicly announced that they are now licensing the performing
rights for podcasting. I think this is an attempt by these organizations
to try to establish that podcasting is a public performance.
I expect music publishers to take a similar stance on podcasting except
they will claim that podcasting requires a mechanical license.
So until the industry determines whether podcasting requires a
performing right license or a mechanical license, I think it would be
safest for the podcaster to negotiate with you and/or your publisher for
the right to use the composition in a podcast. The performing rights
organizations really don't have a strong argument that podcasting is a
public performance and they don't have any legal precedent that
establishes this fact.
From: cc-community-bounces at lists.ibiblio.org
[mailto:cc-community-bounces at lists.ibiblio.org] On Behalf Of drew
Sent: Wednesday, July 20, 2005 6:45 AM
To: cc-community at lists.ibiblio.org
Subject: Re: [cc-community] What about ASCAP?
On Wednesday 20 July 2005 06:45 am, Pieter Roosens wrote:
> > On Wednesday 20 July 2005 05:28 am, Pieter Roosens wrote:
> >> This is the typical problem that lots of music composers have
> >> nowadays.
> >> Here in Europe anyway. Those organisations don't seem to be capable
> >> of dealing with the combination of collecting rights for "some
> >> and Creative Commons licensing for other songs or other cases.
> >> At this moment the only solution seems to be terminating the
> >> agreement, but then you loose anyway.
> >> As long as the contract is there a podcaster will have to pay I'm
> >> affraid. It's out of your hands.
> >> "The right shall be deemed granted to the Society." says the
> >> contract.
> >> I was hoping it would be better in the US than in Europe but ...
> >> Pieter
> > I have seen this argued the other way. The podcaster can show that
> > he has a
> > license and is not availing himself of the compulsary license that
> > collecrtion agencies collect for.
> > The situation is probably like me going to select composers and
> > musicians and
> > negotiating a less expensive licese to play their works exclusively
> > in my
> > restaurant. When the collection agency comes knocking, I am not
> > using the
> > compulsary license and so do not owe.
> > all the best,
> > drew
> > (usual warning: IANAL)
> IMHO and IANAL at all, the music author is not allowed to give a
> license since he/she transferred the "exclusive" right to license to
> the collection Society by the contract. Right ? At least here in
> Europe that's the case.
Well, I don't know about Europe, and I speak with no great convition
it comes to the US, but, as I understand it, the collection society
for uses under the compulsary licenses that exist in law. (You indicate
they have a right to license, I understand them to have an exclusive
collect for a license granted by law, not by them or the creator. Can
check more into this as it relates to Eurpoe?) So, as I have seen it
if you don't avail yourself of the compulsary license, they have no
collect. Can someone who knows more of the US situation comment?
all the best,
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