While the old Napster involved lots of kids and students getting music without compensation paid to the writers and publishers, it’s quite a different situation when highly profitable companies such as television networks and radio stations are allowed to use huge amounts music legally and the writers and publishers of this music receive no share of performance license fees paid for these usages. How could this happen in this day of computerization and digital delivery? It happens every day, and it’s happening right now on hundreds of television and radio stations.
What’s more, if you’re a songwriter or score composer, chances are you’re being paid money by ASCAP, BMI and SESAC (the performing rights organizations – PROs) that was intended for someone else. Maybe a lot of money that was intended for someone else. Whose money are you getting and why? Read on…
In order to protect themselves against copyright infringement, broadcasters such as TV stations, cable networks and radio stations must obtain performance licenses for all the music they air other than that music where the music and the recording is Public Domain. The way this is done for the vast majority of music on the air in the US today is by electing a blanket license with the PROs who represent most of the music used on the air. But let’s look at what a blanket license fee truly represents: a license fee paid for a license to broadcast all music in that particular society’s catalog of music. All of the music. Not just some of the music. So let’s be perfectly clear: the broadcasters are paying license fees – hundreds of millions of dollars each year in total – to pay for the legal right to broadcast all of the music on the air.
Problem is, when the PROs pay out those fees, rather than paying it out to everyone who has music on the air, they have introduced a highly complex series of rules that determine which music “qualifies” to be paid and at what rate, and which music receives nothing. This, despite the clear and unambiguous fact that the broadcasters are paying for all the music they broadcast – that’s exactly what the blanket license covers.
The bottom line: from the perspective of writers and publishers, the PROs are in the business of legally permitting and protecting the broadcast of a huge amount of FREE MUSIC – music performances where the performances are covered by the license fees paid by the broadcasters to the PROs but the PROs deny performance royalties to the writers and publishers of the music.
According to a survey sponsored by an advertising organization, music for commercials, promos and advertisements (“CPA music”) makes up just over 50% of the music on the air on television. Television – including network, local and cable – is ASCAP’s largest single revenue source. However, according to many reports, only a small portion of this music is actually tracked and paid by ASCAP. A high-ranking ASCAP official recently admitted that “we have no way to track national advertising campaigns.” Indeed, if ASCAP lacks the technology or will to track music used in national ad campaigns, what hope do those composers of music used in regional and local ads have of getting paid?
I’m reminded of a surprising post made on our Film Music Pro email discussion list (a great forum with hundreds of film and television composers discussing all aspects of composing) some time ago by the composer who scored the television ads (aka “trailers”) for the hit film “The Matrix” that received heavy broadcast before the movie premiered and during the first month the film was released. Amazingly, the composer says he didn’t receive a nickel from ASCAP for any of these performances. Experiences like this are common in the industry- one major music library owner was recently bemoaning the fact that although music from his library was used in a national Burger King commercial run, very few of the music performances were actually tracked and paid by ASCAP.
If these experiences are any example, there are a vast number of music performances – especially of CPA music – where the writers and publishers of the music are not being compensated by the PROs, despite the fact that the broadcasters are paying license fees to the PROs for these performances and are receiving legal licenses from the PROs to perform this music.
Assuming half the music on the air on television today is CPA music, and a great deal of those music performances are not tracked and paid by the PROs but are being paid for by the broadcasters, can you imagine what would happen if the PROs actually tracked and paid the composers and publishers of this music for these performances?
Even at the shameful rate of 3 cents on the dollar ASCAP has assigned to much of the original music for advertising for a one minute performance on television compared to a minute of song within a television show, there is so much unpaid CPA music out there now that any increase in tracking would result in a massive increase in payouts to CPA music writers and publishers, and since the PROs couldn’t go back to the broadcasters for more money since this music is already being paid for currently, royalty distributions to the rest of the PRO members would be reduced since it’s a zero-sum game – more money for one group of members usually means less money for the other groups of members.
So that’s the elephant standing in the room that none of the PROs want to talk about when it comes to performing rights royalties – the massive amount of non-tracked, non-paid CPA music. It’s clear the PROs are not serious about tracking this music – the technology has existed for years to do so including digital watermarking which isn’t even discussed these days at the PROs, likely because they don’t want to deal with the painful truth about this issue.
That all leads to the inescapable conclusion: most of us who are composers, songwriters or publishers, are being paid money that isn’t ours because a huge amount of music on the air that should be paid isn’t being paid, leaving the “pie” to be divided up among those writers and publishers whose performances the PROs deem “worthy” of payment. The rest of the writers who are excluded from payments for their music performances can pound sand for all the PROs care. After all, it’s not as if you see any of the PRO officials disclosing the extent of the problem or expressing much concern about all these unpaid performances – it’s almost as if they see royalty payment as a privilege that is bestowed by them upon the fortunate. If you’re lucky and write the right kind of music, you’ll get paid. If not, tough luck. I think we as an industry can do a lot better than that.