Remember when we talked about the different rights you had for your music under copyright? One of them is the exclusive right to perform the work publicly, which is where performance licenses come in. ‘Performance’ is actually a pretty broad word – as defined by the Copyright Office, to ‘perform’ a work is “to recite, render, play, dance, or act it, either directly or by means of any device or process.” So by this definition, any time your work is played in a public venue (on a radio station, at a restaurant, even over a PA at a campground – seriously), your performance rights are being exercised and you are owed royalties depending on the terms of a performance license.
So all that artists have to do is monitor every public venue, check and see if their work it being performed, and individually negotiate a rate for each person using their content. Both impossible, and about as much fun as a sharp stick in your eye. Fortunately we have Performance Rights Organizations that do the heavy lifting.
Performance Rights Organizations (PROs) are the intermediaries between copyright holders and businesses that want to use copyrighted works. Artists affiliate with one of three PROs (in the United States they’re ASCAP, BMI, and SESAC) who collect and distribute royalties from public performances to copyright holders. Each business that wants to publicly perform work gets a license with one of these PROs, and pays them a set fee keyed to their capacity (for example, the Black Cat in DC might pay $5,000 yearly, while Madison Square Garden may be $500,000). PROs monitor venues and pay artists a cut of the money they collect from venues based on the amount of airtime that artist’s song is getting.
Performance Rights Organizations
I’ve always been a bit conflicted about PROs – they tend to be rottweiler-ish in their zeal for strict copyright rights (it took months of public shaming to get ASCAP to back on a lawsuit that required the Girl Scouts to pay licenses for singing campfire songs), but they’re instrumental in ensuring artists’ financial livelihood. I decided I needed to get a little more information. I’m affiliated with BMI, so during a trip to L.A., I stopped by their office, and met for about an hour with Hanna Pantle, AVP Corporate and Media Relations. She was generous with her time and (considerable) energy, and gave me a much more holistic understanding of how performance rights organizations operate. We’ll start with a little history…
ASCAP was founded in 1914 to protect the copyrighted musical works of composers and publishers coming mostly Tin Pan Alley (some of the charter members were Irving Berlin and John Philip Sousa). As radio started to gain popularity in the 1930s, artists wanted to be paid for their on-air performances, but stations were reluctant to pony up to ASCAP. So radio organizations banded together and chartered their own less expensive alternative to ASCAP in the fall of 1939, calling it Broadcast Music Incorporated, or BMI (their first hit was 1941’s bizarre ‘The Hut Song’). Many broadcasters and several of the major music publishers quickly shifted to BMI, setting off a small but heated skirmish between the two groups (for a ten-month period in 1941, music licensed by ASCAP couldn’t be broadcast on NBC or CBS radio stations). Eventually, public pressure forced the two groups to play nicely, and today their differences are as vast as that of Coke and Pepsi. Each group claims a roster in the hundreds of thousands, all artists and publishers whose copyright rights the Performance Rights Organizations rigorously defend.
And by the way, I’m not including the dark horse of PROs, SESAC, in this discussion. While ASCAP and BMI are both non-profit entities, SESAC is a for-profit business. And there’s no open membership – you have to be asked by the SESAC to affiliate with them.
Some other things PROs offer musicians:
Artist development – both organizations have a tremendous amount of resources new musicians can use to network and hone their skills (ASCAP’s calendar, BMI’s calendar).
Overseas Representation – PROs collect and distribute a significant chunk of money from performances in other countries – about 1/4 of BMI’s revenue comes from foreign countries.
Role in New Media – artists’ revenues no longer depend solely on radio. PROs are increasingly expanding into games, ringtones, mobile media, and podcasts.
So how does an artist pick which PRO to affiliate with? The typical answer to this question is to search your heart, consider the differences between the two groups, and go with your conscience. Which means nothing if the differences between the two groups are indecipherable to non-lawyers. The two groups monitor airtime slightly differently, but that distinction is subtle and doesn’t consistently affect royalty payouts. I ended up affiliating with BMI because they seemed scrappier and a bit less corporate than ASCAP. After my experience walking around their office and meeting their staff, I’m confident I made the right decision – their staff is truly passionate about new music, friendly, and generous (I even got a USB lava lamp out of the trip).
But there are still a lot of things to sort out. Can a common ethical ground be found between PROs, and Creative Commons licenses? How can the artist development tools PROs offer best be leveraged?
We’ll figure it out – stay tuned.
