Can an artist waive radio royalty fees?
p2pnet view Radio | P2P:- Is there a coordinated effort focussing on the details behind radio royalty fees? And is there anything on whether or not an artist can waive those fees ?
Kansas City session drummer James Millard (right) would like to know.
“I ask this because I was listening to Rush Limbaugh (I know most people don’t like Rush) and a caller asked him why he doesn’t include the music samples that airs live at the beginning of each radio segment or the satire musical pieces that air during the show with his podcast”, James, a p2pnet regular and a2f2a.com member, says, going on >>>
He said that the royalty rates required to play those song samples and satire pieces are so outrageous that it is not profitable for him to play them live and on the podcast too.
My question is this:
If a multi-millionaire radio host can’t afford to play song samples and satire pieces live and on his podcast, what are the financial ramifications royalty rates are having on smaller, independent websites and radio stations?
As an independent artist, I recognize that radio play is the most powerful form of advertising available and it’s free.
The fans may not understand the full ramifications of copyright legislation. To them, copyright legislation means they can’t listen to the music they paid for the way they want to listen to it. Which is of great concern and a severe violation of consumer rights. But to me, the full ramifications of copyright legislation present obstructions to my ability to pay my bills.
For every hoop that fans have to jump through to enjoy the music they PAID for, the less money I make. The less money I make, the more bills that are still due at the end of the month.
I don’t know what can actually be done about radio royalty fees. But I’ve said that when artists start allowing radio stations to play our songs without paying fees then we will finally be free of the major recording companies. But, after listening to conversation about these fees, it almost appears (correct me if I’m wrong) that these fees are “required” to be paid regardless of who the artist is.
The impression is that the royalties must be paid to the collection agency or the RIAA if a featured artist is involved and MUST be paid, without exception, to independent artists as well (the specific example of independent artist on the show is a satirist, don’t know if the is relevant or not).
“I don’t know enough on this area, and haven’t been able to find any concrete answers, but I was wondering if the p2pnet community might know more than I do about this” says James, adding:
” It just seems wrong if artists are not allowed to wave fees that radios must pay to play music.”
Stay tuned.
..… and identi.ca
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
March, 2010
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March 2nd, 2010 at 10:28 am
Did you mean “Waive”?
March 2nd, 2010 at 10:49 am
^^ Yup
Thanks.
Cheers!
March 2nd, 2010 at 11:22 am
That’s an interesting question, I know they want to jack the fees on internet radio, so if an internet radio station decided to say fuck it and play all unsigned artists who they got permission from would they still be on the hook for the fees?
March 2nd, 2010 at 5:36 pm
If the artist is totally independent from the Labels, then I’m sure anything goes, given the right handshakes.
But, if instead, that artist has signed any typical form of label contract, then the right to make such deals would most likely have been signed away as well. That’s another reason to re-think doing any business with a label.
March 2nd, 2010 at 6:35 pm
My thought on this this would be it all boils down to the recording contract .If the record label own the rights (which most if not all do) then I would say the artist doesn’t have any say so in the matter but then again I’m no Lawyer so it’s pure speculation on my part.
March 2nd, 2010 at 6:41 pm
Ok Fred posting just before me disreguard my useless post
March 2nd, 2010 at 6:48 pm
I’m actually a radio broadcasting graduate in Canada. As far as royalties and radio stations are concerned up here it’s actually a relatively fair situation. The CRTC has the mandate on these royalties and charges radio stations a percentage of their gross income as a flat royalty rate for all songs played. The station has to keep a log of all songs played throughout the year to divide the royalties amongst the correct artists. Realistically this is a cost of doing business and a relatively fair method although it does rule out independents, unless the independent is a SOCAN member AND is getting a lot of radio play. Currently no legislation is impacting online radio stations but I don’t think it’ll be long in coming.
I also think that these royalties should not be completely abolished. Radio stations choose to play songs that will build their listenership, not because some artists gave them their recording for free. If they don’t feel it’s going to build listenership they won’t play it. Maybe they will play it once or twice but unless it’s in regular rotation it really isn’t providing all that much promotional support for the artists. With this in mind your comment to need to “pay your bills” is a bit of an undersight. If a company is using my song to build their listener base and sell advertising space making them money why shouldn’t they pay me a bit of something to provide that listener base for them? Here’s where maybe an adjustment should be made in allowing artists to set their own royalty rate for use of their song. Sure let’s let the radio station play it for free for a week. If it ends up in regular rotation pay something…say even 10cents a play. Anyone who has regular play on a radio station gets at least 5+ plays a day. If you stay on rotation for a month on 10 or more stations that’s a decent bit of coin to help pay those bills.
It all boils down to artists taking care of their own business. Just as any other business owner takes care of their product we need to take care of ours and make money using valid methods. Should we be punishing consumers who have PAID for our work with copyright infringment? No. However if a project or company is using my material for their own personal financial gain then I expect to be able to come to an understanding with that project for some form of compensation. This is no different than any other business. If someone buys 500 hammers and wishes to resell them the hammer manufacturer made their money by selling the product in the first place. Tough thing with anything digital is that there are no supply limitations. It falls well beyond the scope of modern economics. Therefore a limitless supply will never allow pricing to be brought up no matter what the demand. With this in mind new tactics must be created to allow for the artist to “PAY THE BILLS” whatever way they can.
March 2nd, 2010 at 6:49 pm
What follows here is strictly limited to the US, and, as is the case with all legal analysis on the Internet, it is worth exactly what you are paying for it. If you are a broadcaster of any type seeking to determine your license obligations, get specific legal advice from your own attorney.
The OP asks if artists can waive radio fees. There are a number of different terms in there that need to be defined so that we are all talking about the same thing when it comes to finding answers.
“Artist” – Normally, we would be only using this term to refer to someone who actually creates content; i.e. composers and musicians, but because we are dealing with intellectual property, it is not the simple act of creation that invokes the right to grant or waive permission for use, it is the possession of the legal copyright in the creative works. That COULD be the musician and/or the songwriter, and/or it could be the publisher of the composition and/or the entity holding the copyright on the recorded work, as Devil’s Advocate correctly notes.
“Radio” – There are different rules for different media, so you have to specify which one you are talking about.
1. There is “terrestrial radio,” which we find on the AM/FM bands.
2. There is “internet radio,” which are non-interactive streams like Pandora, RadioParadise and Soma.fm.
3. There is “podcasting,” which, for our purposes, we can define as the distribution by download via specialized software of creative content. Podcasting has special rules that apply, and the Limbaugh example turns on those special rules.
“Fees” – Someone wanting to use a specific piece of music for a specific use may face the need to pursue up to three separate licenses, and pay three separate fees. There is the fee that goes to the music publisher (or other holder of the copyright in the composition) for use of the song. There is the fee that goes to the record company (or other holder of the copyright in the recorded performance). These two fees generally cover the right to “reproduce” the recording for distribution.
And there is the “public performance” license and fee. For Internet radio, there are two performance royalty fees, one for the composition, and one for the recorded performance. For “terrestrial radio” and “podcasts” there is currently just one public performance fee; for the publisher and composer, although there is currently a bill before Congress that would extend the performer’s royalty to terrestrial radio for artists and record company/copyright holders.
So, now that we’ve laid out the terminology, let’s try to answer the question.
The OP states that Rush Limbaugh has music on his terrestrial radio broadcasts but cannot offer the same music on his podcasts because of the prohibitive licensing fees.
Limbaugh does not have to pay license fees directly to the composer/publisher or artist/record company for playing music on his terrestrial radio show. For performance royalties on his terrestrial radio show Limbaugh pays blanket license fees to ASCAP, BMI and SESAC, the three composer/songwriter “performing rights organizations” (PROs) that allow him to play any piece of music written and published by any of their members without striking an individual deal for each individual song. Because Limbaugh’s show is a commercial enterprise, the fees for these licenses are based on the total advertising revenue of the terrestrial broadcasts, and on the relative amount of music used in the program. I have no idea what those advertising revenues are, so I have no way of estimating what the actual fees would be. I would guess that he is probably paying thousands of dollars a year to each PRO. The ironic thing is that the blanket license allows Limbaugh to play any piece of music covered by the PRO’s regardless of whether or not the composer agrees with Limbaugh’s politics. The same rights go to any entity that pays the blanket license fees, including fringe political and social groups. (Elsewhere in the world, creators may retain certain “moral rights” over some uses of their creations. The US only recognizes moral rights, and in a severely limited form, for graphic artworks.)
When it comes to his podcast, those PRO licenses don’t begin to cover Limbaugh’s legal obligations.
First of all, the owners of the copyrights in both the composition and the recording claim that a podcast is really a “reproduction” of their property, since a listener downloads the podcast and not only controls when they can hear it, but how often they can hear it. Because it is a “reproduction,” the PROs cannot offer licenses to cover the use. Limbaugh must then license each composition from the publisher. He must also license the use of the specific recording from the copyright holder, usually the record label. As these licenses are individually negotiated, the fees can range from minimal to substantial. While it is possible to negotiate a zero-fee license, it is highly unlikely to happen when the licensee is a money-making enterprise like Limbaugh’s program. I note that he charges an annual fee to access his podcasts through iTunes. In addition, he has to pay someone to negotiate all those individual licenses, and that’s going to run into substantial costs.
Now, to further confuse matters, the PRO’s have asserted that a podcast is not only a “reproduction,” but that it is ALSO a “performance,” which means there is ANOTHER license to be obtained, and ANOTHER fee to be paid to them, separate from the blanket fee that covered the original broadcast. While there has been a long running debate on the philosophical and technical basis for this argument, the PROs have some caselaw on their side. A number of observers think this morass of rights, obligations and fees is the primary reason why podcasts are still marginal players in the world of music economics.
If Limbaugh was doing his show as a streaming Internet broadcast, ala Pandora, he would not have to individually license the songs and recordings because, outside of the RIAA, no one is seriously arguing that an Internet broadcast is a “reproduction.” He would, however, have to pay performance royalties to both the PROs and to SoundExchange, as the US recognizes an artist’s right to performance royalties from Internet broadcasts, and the Copyright Office recognizes SoundExchange as the only authorized collection and distribution agent. The amount of the royalty is calculated on the basis of audience size and advertising revenue. Payment to SoundExchange is mandatory for all Internet broadcasts, and it covers all performers whether or not they are members of SoundExchange.
So, can someone tell Rush Limbaugh that he can play their music for free?
A songwriter can issue an individual waiver on performance royalties. As long as the waiver is filed with the songwriter’s PRO, it is valid. A songwriter willing to let ANYONE perform his music in public without royalties can do so by simply withdrawing the song from his PRO, or not joining one in the first place. Separate waivers would be needed for the terrestrial radio broadcast and the podcast.
The performing artist and whoever holds the copyright in the sound recording have nothing to waive on the terrestrial broadcast, as there is no performance royalty on their side of the equation. Yet. Congress is currently considering the Performance Rights Act that would create such a royalty.
Whether or not there could be waivers granted by those rightsholders is an open question that really depends on the legislation if it is passed. If the legislation looks anything like the law that created the royalty for Internet streaming broadcasts, the blanket license provisions the current law uses may make a waiver ineffectual. Right now, a performer/copyright holder can neither prevent an Internet broadcaster from using his or her recordings, nor effectively waive his or her rights to the performance royalty without signing an individual waiver with each and every Internet webcaster.
James’ inquiry seems to mix some of these obligations and categories, and it contains some statements that are open to dispute.
When he says of fans “To them, copyright legislation means they can’t listen to the music they paid for the way they want to listen to it,” that really doesn’t involve listening to the radio, where what they have “paid” is measured in terms of attention, and if they are listening to the radio, you have to presume that is the way they want to listen to music.
Copyright law, in and of itself, doesn’t affect the way we “want to listen” to music, especially if we have actually paid for it. Copyright law is simply a system by which the authority to control distribution of copies of creative works is reserved to specific individuals or entities. Possession of a copyright in a song or a sound recording may give you the right to control distribution of copies, but when it comes to play on the radio, the existence of blanket licenses pretty much limits the copyright holder’s rights to the right to be compensated for the performance.
James goes on to say “But I’ve said that when artists start allowing radio stations to play our songs without paying fees then we will finally be free of the major recording companies.” I doubt this conclusion, greatly. Record companies do not receive payment for radio play now, except on the Internet. As noted above, songwriters and publishers can already issue waivers. On terrestrial radio, artists don’t need to issue waivers because they presently have nothing to waive. Technically, they can waive performance royalty rights to Internet use of their recordings (if they hold the copyrights), but they have to do so on a station by station basis.
James continues “The impression is that the royalties must be paid to the collection agency or the RIAA if a featured artist is involved and MUST be paid, without exception, to independent artists as well (the specific example of independent artist on the show is a satirist, don’t know if the is relevant or not).”
Royalties will be due to the PRO unless the songwriter/publisher waives them. There are no royalties payable to the RIAA, which is a trade group and not a collection agency. I cannot figure out what the rest of that sentence means.
So it really is the question of the cost of the direct licenses from the publishers and record companies for the podcast use of the music that is at the crux of Limbaugh’s decision not to use music on podcasts.
In framing future discussion on this issue, it will probably make sense to remember the fundamental philosophy at work. That theory is that if someone, like Limbaugh, uses music as part of his successful commercial enterprises, he ought to pay the creators in recognition of the value that music adds to the enterprise. It isn’t really that radical an idea. Current independent artists like James feel that radio provides free advertising for him, and that can certainly be a trade-off for artists like him, but only if the user identifies the artist so that the listener can find more of the artist’s work, and, more importantly, only if the artist is in a position to actually use that free advertising. For artists who are retired, or dead, free advertising doesn’t mean much, so there needs to be another way of compensation for those uses.
We may eventually get to a day when there will be a unified license scheme for creative works; where someone seeking to use music for commercial gain will be able to clear all rights at a single clearinghouse and sign one agreement and use the music or the visual work or the text as wanted. When we get there, it will also probably be a lot easier to coordinate a blanket waiver policy for individual creators. Right now, the entire regime is far too fragmented (and the interests of the varies parties far too disparate) for such unity to exist.
When Limbaugh says that that the cost is too “outrageous” for him to license the recordings for podcasts and remain profitable, I think he’s engaging in a bit of hyperbole (as hard as that may be to believe for someone as well known for understatement as Limbaugh.) It is, without a doubt, an increase in cost, but the number of podcasts that do license music and continue to be profitable would seem to belie his claim that the cost itself is unbearable. Yes, it is an extra cost, and yes, it takes extra work to do it. The question, as always, is whether or not you think music adds sufficient value to your broadcast to be worth the time and expense to license it. Limbaugh says it isn’t.
Chutney’s comments deserve a great deal of consideration in any deeper discussion of the issue. Theory is a wonderful thing, but the practical application of theory is where the artist will live or die. Chutney nails several of the most issues in this regard, and what he says rings true.
March 2nd, 2010 at 6:51 pm
@ Fred:
Thanks Fred. Maybe you shouid be an entertainment lawywer or something?
(Actually, joking aside, that’s exactly what Fred is, down in Nashville. Should you ever need someone who A) really does represent the artists he works for and who B) really knows what he’s talking about, you can contact him here – fred.wilhelms @ gmail dot com )
Cheers!
March 2nd, 2010 at 9:46 pm
@Chutney
I disagree with you on some points
“Realistically this is a cost of doing business and a relatively fair method although it does rule out independents, unless the independent is a SOCAN member AND is getting a lot of radio play. Currently no legislation is impacting online radio stations but I don’t think it’ll be long in coming.”
This is the old “well a few will always fall through the cracks argument that I’ve always hated.” No, actually the fact that the system excludes independents who aren’t SOCAN members and extremely popular makes it inherently UN-FAIR. Does this mean that the radio station isn’t allowed to play non SOCAN artists at all, or if it does they can’t pay them even if they wanted to? Sorry, but I think we have a vastly different concept of “fair”.
“If a company is using my song to build their listener base and sell advertising space making them money why shouldn’t they pay me a bit of something to provide that listener base for them?”
It could just as easily be argued that the company playing your song is building YOUR listener base. Maybe by that logic you should pay them.
“It all boils down to artists taking care of their own business. Just as any other business owner takes care of their product we need to take care of ours and make money using valid methods.”
I agree, but “taking care of your own business” may be a little hard if you have a system which denies radio stations from playing independent, non SOCAN artists. Ditto for making them jump through a bunch of legal hoops to allow the radio station to play their music for free if they so wish it.
@Fred
“The fans may not understand the full ramifications of copyright legislation. To them, copyright legislation means they can’t listen to the music they paid for the way they want to listen to it. ”
He wasn’t very clear with this statement, but I think he may have been talking about DRM here. An example would be the infamous sony CD rootkit. Nobody “wanted” a rootkit installed on their computer, nor did they “want” a restriction so they couldn’t copy their CD’s to mp3’s and transfer them to other devices.
March 2nd, 2010 at 10:14 pm
@Chutney
“However if a project or company is using my material for their own personal financial gain then I expect to be able to come to an understanding with that project for some form of compensation.”
Using the idea, that I am entitled to royalties for allowing them to use my music to build their business on, then they are also entitled to advertising fees for playing my music. Every so many radio plays equals a cd sale. Every so many radio plays equals a sold ticket to a show. Radio is the best advertising partner artists have and the industry has treated our best advertising partner as a bastard child that is an endless supply of cash.
@Fred
“I cannot figure out what the rest of that sentence means.”
The music that the listener asked about were not big music songs but original satire music. Music that was not using big music melody but original music that parodies the political topic of the day. The satirist is Paul Shanklin. That is the specific music I was referring to at that point in my question.
This all came about because of a conversation I had with a band mate. We were talking about different ways that we could promote our music. Then we starting talking about what might be done to help independent artists as a whole. The discussion turned to a co-op type organization that would help independent bands get radio play when he said “hey, what if we just start our own radio station.” Now, I’m not a businessman but the idea was really,,, different. An artist owned station that only played independent artists. I’m not sure that I really want to run a radio station but we’re just brainstorming and researching at this point. But when I heard Limbaugh’s comments, I started thinking that if there was such a thing as an artist owned radio station that just played independent artists, having to pay the same royalty fees that big radio pays to big music would seriously hurt our ability to get our music to our fans over the radio. But like I said, I’m not a businessman so I’m not sure how one would even put together an artist co-op to start a radio station but Limbaugh’s comments on royalties really got thinking about how much radio does pay big music. And that’s another point, radio pays big music for big music’s advertising airtime. I’ll save that complaint for later.
Anyway, I didn’t realize it would be such a complex answer or I would have included more information in my question. Thanks for the input.
March 2nd, 2010 at 10:21 pm
@Monkey
“He wasn’t very clear with this statement, but I think he may have been talking about DRM here. An example would be the infamous sony CD rootkit. Nobody “wanted” a rootkit installed on their computer, nor did they “want” a restriction so they couldn’t copy their CD’s to mp3’s and transfer them to other devices.”
Exactly. I know I got lost on a tangent there, started out asking about royalties rates then get distracted by DRM, but I think they go hand-in-hand. It is the same “We OWN the music” mentality that drives both DRM and royalties. Yeah, I didn’t expressly say DRM but I knew that the fans knew what I was talking about.
March 3rd, 2010 at 12:44 am
@jamillard
Are you thinking of starting an actual broadcast radio station? I was always under the impression that such a task was herculean in scope, requiring an enormous amount of cash outlay, compounded by the difficulty of getting an FCC license for it. I understand a low power broadcast license, like colleges have, may be easier to obtain and the equipment also significantly cheaper, but I think your broadcast power is limited to something like 1000 watts, which maybe gives you about a block broadcast area. Of course if you were talking about an internet radio station, that is much more affordable and of course coverage is world wide. A combination of a low power station and net broadcast sounds like it would be a lot of fun to do. It seems like from what Fred says all the independent artists would have to sign a waver with you to enable you to play their stuff without your radio station having to pay out royalties. I’d say you’d have to consult with someone like Fred to have that drawn up so it would hold up in court if your station got challenged by some collection agency like ASCAP or SoundExchange.
March 3rd, 2010 at 1:01 am
@Monkey
We just brain storming at this point but we think something big needs to be done to help independent artists balance the market. We’re thinking about a low power broadcast with a live internet stream, just like you suggested.
March 3rd, 2010 at 8:02 am
jamillard, streaming is more expensive in terms of bandwidth than file-sharing (in theory there’d be widespread stream-sharing facilities). Streaming is also legally expensive, and is only used commercially because there is a compulsory licensing arrangement for it that doesn’t exist for file-sharing (and thus podcasting). The compulsory license is much cheaper than clearance (for an unknown work).
However, if there was a way that file-sharing ‘listeners’ could set their BitTorrent clients to automatically and continuously download all files marked with a ‘pirate radio station’s’ call sign and place them into a particular folder, then one could create a playlist client s/w utility that read the next day’s playlist from the ‘pirate radio station’s’ RSS feed.
This means the pirate radio station is theoretically legally immune since they neither stream nor file-share. All they do is publish an RSS feed with a list of files they’ve found (via Google even) that have a particular call sign, but in a supposedly considered order and according to the station DJ’s musical taste. The pirate radio station also has little in the way of bandwidth worries.
If you want to request a particular MP3 file to be played by the pirate radio station you simply mark it with the pirate radio station’s call sign and share it via BitTorrent. Obviously, if you are the copyright holder or have a copyleft license to share it then you’ve no worries. Moreover, the collection societies are out of the picture because no files are being streamed.
Nothing I’ve described here is new or difficult, and much of the necessary s/w is already developed, it’s just that no-one has yet brought it all together and popularised it.
So ‘pirate radio’ on the Internet is possible, but it’s via publishing playlists to file-sharing ‘listeners’.
If it’s illegal to share music, and prohibitively expensive to stream (even copyleft music), and this is all for the people’s supposed benefit, then let the people share the music (and the legal burden), and allow thousands of pirate radio stations to bloom.
In the 60s pirate radio stations broadcast from the sea to escape regulation. In the 10’s the sea is the people. Prosecute that.
March 3rd, 2010 at 9:56 am
Fred Wilhelms says:
“The ironic thing is that the blanket license allows Limbaugh to play any piece of music covered by the PRO’s regardless of whether or not the composer agrees with Limbaugh’s politics.”
More Ironic is that Limbaugh (nor anyone) knows what songs are covered by the blanket licenses, as no list of songs are given to the licensee.
I pit it this way: The so called blanket licenses are covered by a blanket so that you do not know what is under the blanket. They are a scam.
Sorry Fred, but your explanation fails.
“A songwriter can issue an individual waiver on performance royalties. As long as the waiver is filed with the songwriter’s PRO, it is valid.”
This makes no sense. Licenses from the PROS are paid at a fixed before a time period start. If a songwriter waived his right to payment for the use of his songs on radio, the radio station will not benefit at all. What the PROS do with the waived money is what they do with the other money. It is split with the PRO controlling publishers. In other words, it goes down the black accounting hole.
“Copyright law is simply a system by which the authority to control distribution of copies of creative works is reserved to specific individuals or entities.”
There is nothing simple about copyright laws. The law, thoroughly complex, is nothing more that the result of disparate ideas. It stars by saying that is is to promote the creation of works of art for the benefit of the public but has actually destroyed the motive for creation of many of the more talented artists.
“but when it comes to play on the radio, the existence of blanket licenses pretty much limits the copyright holder’s rights to the right to be compensated for the performance.”
It is not the existense of the blanket license. It is the fraudulent accounting system withis the PROS (and the lack of interest on the matter by government) that limits the right to be compensated.
“they can waive performance royalty rights to Internet use of their recordings (if they hold the copyrights), but they have to do so on a station by station basis.”
Not really. Independent artist can simply print on their records that “public performance and internet steaming is hereby authorized”.
A final point.
Radio station executives or employees are paid so they play records. This is the so called payola.
Then payments are extracted by the PROS from the same radio stations for playing the unidentified songs (see about blanket licenses above).
We than have two crooked system working in opposite directions for the same purpose: make money for the record companies and the music publishers. Both systems screws the artists and the songwriters. It is time that government/law intervenes ti fix a system that is both crooked and dysfunctional from the creators point of view.
March 3rd, 2010 at 2:11 pm
Songwriter,
Your complaints about the politics and inefficiencies of the PRO’s are mostly well taken. However, they don’t address the points I made.
A blanket license issued by a PRO covers all titles administered by the PRO. The “list of songs,” which would be hundreds of thousands of titles long, is actually available on ASCAP’s and BMI’s websites. If you need to know who administers a particular song, you can look it up. This doesn’t constitute a scam.
If a songwriter withholds authorization for a PRO to collect license fees for one or more songs, it has a greater impact than simply reallocating a portion of the license fee. The PRO cannot attempt to enforce the license on the basis of the performance. I believe the OP’s point was that if a radio program (or a live venue) featured only music on which a songwriter had waived rights to performance royalties, there would be no need for a blanket license at all. Beyond that, waivers granted to a live music venue would have a direct impact on the amount of the license fee paid by the venue.
The fundamental concept of copyright is the reservation of right to distribute copies. It is the mechanism by which “the creation of works of art for the public good” is to be promoted. That the system has been gamed by some participants doesn’t change the underlying concept. Whether or not that corruption has, in fact “destroyed the motive for creation of many of the more talented artists,” is a fundamentally unprovable premise.
Whether or not the accounting systems employed by the PROs are corrupt, it doesn’t change the fact that individual songwriters within the PRO give up essentially all control over who gets to perform their songs, or where, in return for the right to be compensated for those performance. That was the germane point. Your complaint may be valid, but it is irrelevant to the matter under discussion.
Your printed waiver is legally insufficient to avoid potential obligation to pay performance royalties, especially if the independent artist is performing works written by someone else. If a songwriter wants to write something that will have at least some of the impact you want, he should either declare his composition to be in public domain, or under some Creative Commons license. It is highly doubtful that a CC license would be sufficient, in and of itself, to avoid obligations relating to Internet broadcast performance royalties. Your suggested “authorization” is insufficient to waive those obligations on behalf of third parties.
March 3rd, 2010 at 6:28 pm
@Fred Wilhelms
“It is highly doubtful that a CC license would be sufficient, in and of itself, to avoid obligations relating to Internet broadcast performance royalties. Your suggested “authorization” is insufficient to waive those obligations on behalf of third parties.”
So what exactly WOULD be sufficient for an independent artist that would like their work( assuming here that it IS their work they are preforming and not a cover ) to be played on internet radio without any kind of royalties? Are you saying they all have to hire copyright attorneys to draw up contracts? You really don’t see a fundamental problem with this?
March 3rd, 2010 at 6:47 pm
Fred Wilhelms:
“A blanket license issued by a PRO covers all titles administered by the PRO. The “list of songs,” which would be hundreds of thousands of titles long, is actually available on ASCAP’s and BMI’s websites. If you need to know who administers a particular song, you can look it up. This doesnt constitute a scam.”
As to the idea of looking up songs in the PRO catalogs before performance, the reality is no one hardly does that. An acquaintance who produces a music radio program was ordered by his radio station (which, by the way, has been sued several time for using songs without a licenses) to check up the 20 or so songs he plays everyday in his 2 hour daily music program gave me the scoop. The producer spends more time checking up the catalogs than doing the program and what he is paid by the radio station (a no ad non profit one) for his program does not make the program worthwhile for him. As a matter of fact, what he earns from his radio program, he spends in upgrading his music collection so that his radio program can play recent songs. The radio station itself has no music collection. Also many songs he wants to use do not appear in the domestic PRO catalogs and the foreign PROS associated with the domestic PRO have no web sites with their catalogs, so checking these (if you figure out who they are) up is not feasable. The domestic PRO license does not even list the foreign PROS that are represented by the domestic PRO.
One thing for sure. When this acquaitance retires (he is over 75 years old) the last music program in the radio station will dessapear and will not be replaced with a music program. This is a pattern here… music programs are dissapearing fast from radio. Royalty paymens and the threat of copyright infringements are the main reason along with the fact that good music is hardly produced anymore and audiences are turning away. For this give thanks to the copyright law, the music publishers, the record companies and the PROS, none of which care about the quality of music recordings as long as thes make money on the short run.
Another acquaintance has a mariachi band and pays in a restaurant. He plays mostly songs requested by the customers and has no time to tell the customers at midnight “we will pay the song after checking the data base of all domestic PROs license by the restaurant”. BTW, the restaurant has no computer.
As to…
“Your printed waiver is legally insufficient to avoid potential obligation to pay performance royalties, especially if the independent artist is performing works written by someone else. ”
The printed statement is only valid if the artists is the songwriter or if the artists authorized to print the statement by the song’s owner. I am myself authorizing my licensees to put the statement on their records. I do this because my songs are not listed under any PRO (and will not be listed until the PRO’s accounting systems are fixed).
March 3rd, 2010 at 7:04 pm
@Monkey
By my figuring, you’re going to need an individual waiver granted to the broadcaster in order to avoid a challenge from SoundExchange that the royalty is due and owing. I may be overstating the case, but then my job is to keep my clients from being sued. The current royalty system was intentionally set up to frustrate the possibility of waivers. Section 114 of the Copyright Act gives you the right to negotiate rates different from the statutory rate. It doesn’t give you the right to do this easily or cheaply. The current language favors the copyright holders with large catalogs who can spread the cost of the negotiation across all the items in that catalog. This should not surprise anyone, as the large copyright holders are the ones who designed the system for their benefit.
Songwriter’s waiver language, at the very least, should read “public performance and internet steaming WITHOUT COMPENSATION TO THE RIGHTSHOLDERS is hereby authorized.” Otherwise, the language is giving people what they already have.
March 3rd, 2010 at 7:33 pm
@Songwriter
You originally claimed there were no lists, now you claim nobody uses them. The fact that “no one hardly does that” in checking PRO databases is hardly a legal argument against doing it to avoid litigation. If you want to be protected against the consequences of stupidity, you have avoid doing stupid things in the first place.
I’m not sure what point you’re trying to make in your two stories. A radio station that chooses not to obtain a blanket license because it has only a single show featuring any music directs that producer to make sure the station doesn’t violate anyone’s legal rights. It’s a hassle for the producer. Not checking would be potentially a bigger hassle for the station. You seem to argue that the producer should have the right to play whatever he wants without paying for a license. Fine, but you need to make the case based on something other than you think the PROs are corrupt. Furthermore, your conclusion about the disappearance of music programs is wrong on two counts. Music programming isn’t “disappearing” from terrestrial radio. Straight news/sports/talk stations constitute less than a third of the stations in the US. And those that change to those formats don’t do it out of fear of infringement litigation, they do it to make more money by attracting a bigger audience. And further, there is absolutely no “quality” requirement in copyright law, or publishing, or record companies, or the the PROs. You’re setting up arguments that no one is making.
Your mariachi example is of equally dubious value in this discussion. If you are suggesting that somebody eating in the restaurant has a greater right to hear the band play their version of some favorite song than the composer of that song has in being compensated for the use of his music in improving the dining experience, you’re going to have to go a lot further to convince me. According to your story, the restaurant is setting itself up for potential problems by having the band play requests and not making sure the licenses are in place. That’s not terribly bright on their part. The venue has a choice, get a license or tell the band to play only songs they know are not administered by the PROs. The fact that it may be a hassle to find out what they can play without risk is hardly a strong argument for letting them do it without facing those risks.
March 3rd, 2010 at 10:02 pm
@jamillard
I’ve been going through Fred’s advice, and it seems to me that what you want to do is possible but you have to be careful. Make sure independent artists submit only their original material, nothing that is owned by anyone else, as they can’t abrogate rights to that material.
Don’t get discouraged…
From Fred: “The current royalty system was intentionally set up to frustrate the possibility of waivers. Section 114 of the Copyright Act gives you the right to negotiate rates different from the statutory rate. It doesn’t give you the right to do this easily or cheaply. The current language favors the copyright holders with large catalogs who can spread the cost of the negotiation across all the items in that catalog. This should not surprise anyone, as the large copyright holders are the ones who designed the system for their benefit.”
It’s obvious from the above statement the big players don’t want you to be able to run a royalty free station that plays strictly independent music. The best way to say fuck you to them is to forge ahead and do it anyway.
It sounds like you will need to hire Fred, or someone like him to draw up a rock solid waver contract. You then post that on the stations web site in some printer friendly formats (pdf, doc, odf), under a “submission guidlines” page, explaining that the Artist needs to print the contract, sign it, and send it along with their CD to the radio station. You may still wind up in a conflict with copyright Nazi’s, but at least with a system in place like I suggested you can at least show you made a due diligence attempt to comply with the law.
Maybe Fred can suggest something better, but that is the only affordable idea I could think of.
March 3rd, 2010 at 10:06 pm
“You originally claimed there were no lists, now you claim nobody uses them.”
That is not what I said. I said that when you get a license from a PRO you do not get a copy of a list of songs you are authorized to play.
On the other hand hardly anyone verifies with the PRO database on the we because the database is thoroughly incomplete because it does not include the songs from foreign PROs included in the licesnse. As a copyright attorney you know that all PROs in the world are cross linked through contracts so that one PRO licenses the songs in many PROs but there is no one place that lists all the songs for easy searching.
“The fact that it may be a hassle to find out what they can play without risk is hardly a strong argument for letting them do it without facing those risks.”
Searching a PRO data base is not a hassle, It is impossible for a mariachi band.
For example many songs registered with the PROs are not the actual songs but arrangements. It is not practical to check for a song in one PRO and then do another search for the arrangement in another PRO of many other countries and if you do not find the arrangement PRO then decide not to use the song because you could be sued for performing (not the song but) the arrangement no one knew was copyrighted until lawsuit time.
Music should be a primarily a cultural thing, not a legal thing. It should not be a thing about pitting the eating experience versus the right of songwriters. Certainly you can pit the rights of the restaurant owner to save money by not paying for licenses versus the rights of authors to make money with their work, but doing that makes no sense when all that a restaurant owner can do is pay for a license that is only protection against lawsuits, as there is no way of determining all (actually most by far when the foreign PRO songs are counted) the songs that can be played under the license.
By the mariachis not playing songs because they cannot check non existent databases does not advance the rights of mostly foreign songwriters (The mariachis do not play American songs) that in all events receive no royalties from their foreign PROS. If you think the Amercan PROs are bad at paying songwriter royalties, the foreign ones are even worse.
I think the the restaurant where the mariachis work has a license from the major PROs. But when it comes to play time no one checks the PROs database to make sure they are covered according to my mariachi source. It is not even possible to check.
BTW the radio station in my story had a a license from the three major domestic PROs. They never checked the databases of these and wound up being sued by a small music publisher of many songs performed without authorization. They settled the lawsuit. It is rumored that it was a very expensive settlement. It is for that reason they ordered their producers to check the PROs databases.