Has Copyright Law in the Music Industry Gone Too Far?

-- By SamSchaffer - 11 Oct 2019

Girl Scout Cookies Not Accepted As Payment

In 1996, the Wall Street Journal reported that the Girl Scouts of America were threatened with a copyright infringement suit for singing songs around the campfire. The American Society of Composers, Authors & Publishers (“ASCAP”) had sent letters to the American Camp Association – which runs many of the camps the Girl Scouts use – demanding licensing fees for the rights to sing copyrighted songs at their camps. The article created a PR nightmare for ASCAP, who later insisted it never intended to license Girl Scouts singing around the campfire. But this assertion is belied by a quote from ASCAP’s then-chief operating officer, John Lo Frumento: “They buy paper, twine and glue for crafts – they can pay for the music, too.”

Luckily, the Girl Scouts’ favored place in Americana saved them. The American Camp Association reached a deal with ASCAP for a nominal yearly licensing fee of $1 per camp. Nevertheless, the underlying copyright law would have allowed ASCAP to assert a viable claim.

Federal copyright law enables composers and songwriters to demand royalty payments for any public performance of copyrighted material (17 U.S.C. § 106). A public performance is defined as a gathering of “a substantial number of persons outside of a normal circle of a family and its social acquaintances” (17 U.S.C. § 101). Small venues of less than 3,750 square feet or that use 6 speakers max are exempt if they transmit the music through radios or other devices, but the carve-out does not extend to live acts (17 U.S.C. § 110(5)(B)(ii)).

Leave It To The PROs

Obviously, the ability to collect royalty payments hinges on the ability to monitor venues. Artists generally do not have the wherewithal to enforce their copyrights. This is where performance rights organizations (“PROs”) come in. ASCAP was the first such organization, founded in 1914. Since then, other PROs have emerged on the scene, including – most importantly – Broadcast Music, Inc. (“BMI”). Songwriters and music publishers agree to assign their copyrights to the PROs, and the PROs then ensure that the songwriters and publishers receive compensation whenever their music is played publicly. Most of these organizations are structured as nonprofits, with most of the revenues collected sent back to the songwriters and publishers.

So, have the PROs lived up to their end of the bargain? By most measures of corporate enterprises, the answer is emphatically “yes”. In 2018, ASCAP collected $1.227 billion in licensing fees, $1.109 billion of which was distributed back to the artists and publishers. BMI – who initially was created as an alternative to the bully, ASCAP – has become a behemoth in its own right. Last fiscal year, BMI collected $1.283 billion in licensing fees, $1.196 billion of which was sent back to the artists and publishers, a 7% growth over the previous year. Both organizations consistently distribute 90% of their revenue to their artists and publishers.

These organizations have massive reach. Their industry spans network television, cable, film, radio, digital, bar/restaurants, hotels, concerts, retail stores, fitness centers – and campfires. Last fiscal year, BMI processed 2.19 trillion performances. The vast majority of these “performances” were digital – 98%. It’s no surprise that the industry is moving in that direction, with the emergence of platforms such as Spotify. While digital only constituted 28% of BMI’s domestic revenue last year, it largely drove domestic growth (75%). Even so, the bulk of PRO revenues still come from traditional sources, such as TV, film, and radio. Live music is lumped into a catch-all category that ASCAP and BMI refer to as “general” or “background” revenue, which makes up only 18% of collections in BMI’s case.

Despite the nonprofit status of ASCAP and BMI, a brief look at the makeup of each organization’s board of directors reveals deep ties to the already wildly successful corporate music industry. Half of ASCAP’s board is comprised of “publisher members”, who hail from companies such as Sony/ATV Music Publishing, Welk Music Group, and BMG. A music publisher is like an agent, working on behalf of the songwriter/composer to secure royalties and licensing agreements. They also promote already existing compositions for use in TV and film and by recording artists. The majority of the other half of ASCAP’s board – which is reserved for “writer members” – is comprised of TV/film scorers and songwriters for big-name acts.

Is This What We Want?

PROs are undoubtedly good for published artists. But are they good for music?

As music migrates to the digital realm, and as other industries continue on their course of consolidation, it is hard to ignore the increasingly vapid nature of our analogue options for entertainment. The Guardian has reported on the slow death of music venues in cities – this despite a growing music industry. Only expensive mega-festivals share in the growth that digital has spurred. As in radio, localism in the music industry is waning.

The silver lining is that we have access to far more music than ever before, thanks to digital platforms. But if we are to reinvigorate local music, copyright law needs to be changed. Bars and restaurants – the places where new artists cut their teeth – are less able to hire live acts due to the fees charged by the PROs. These businesses are already risky endeavors, and the extra cost of the licensing fees forces them to hire cheaper DJs.

So What Do We Do?

To combat this trend of declining local music options, I propose a simple edit of 17 U.S.C. § 110(5)(B) to include live acts in the exemption. PROs and their clients would not be substantially harmed, since this category is only a thin slice of their revenue stream and is the most expensive category to enforce. The amendment might increase music sales, as Napster did. The end-results would be a boon to local food and music, PROs could see greater income from digital, and Girl Scouts can sing “Puff the Magic Dragon” around the campfire guilt-free.

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