Eighty-four years ago a group of composers joined together to form an organization to protect their rights in the music they created. It was a good idea then, and it’s still a good idea today. But ASCAP is facing some difficult times, with government regulators on one side, agitated users on another, and its own membership raising fundamental questions about how the organization operates. What ASCAP does over the next few years will have a profound effect on all composers who work in our industry.
We all know that ASCAP was, and still is in many ways, a songwriter organization. But its mingle-with-the-stars image belies the fact that most of the music used by its primary sponsor-TV and cable broadcasting-is not songs, but media music. By that I mean the music created and used for local, syndicated and network television shows, made-for-TV movies, TV sports programs, commercials, promos and logos.
The weighting formula which ASCAP uses to determine how much various kinds of performances are worth (now about 34 pages long), seems designed to ensure that no member can really figure out what they should be getting paid, but that in any event, hit songwriters and their publishers will always receive more than media music writers.
For example, did you know that when a hit song is used in a commercial, the songwriter and publisher not only split the very lucrative synchronization fee (millions for big campaigns), but also receive four times the amount of performance credit from ASCAP that an original track receives? Since the royalty pie is a finite amount, when one writer gets a larger slice, everyone else gets a smaller slice. So this 4:1 bonus system comes not at the expense of broadcasters or advertisers, but at the expense of all other ASCAP members. Hummm.
Scoring commercials, creating dramatic cues or capturing the essence of a TV show with the perfect theme music is both extremely challenging and personally rewarding. It’s no surprise then that media music has attracted some of biggest names in the music business, as well as thousands of lesser-known (but perhaps no less talented) professional composers across the country. What is surprising is that the blatant discrimination against media music by the performing rights organizations continues to be tolerated.
A few years ago, the ASCAP Board noticed that television broadcasters were using less music in their programs (and even fewer songs) and more music in their promos and commercials. Media composers were getting “an inappropriate amount” of royalties. Acting quickly, the Board slapped a 10% Cap on distributions for these kinds of performances. Not surprisingly, the affected ASCAP members cried foul, and in a surprising show of unity organized by the Professional Composers of America, members converged on ASCAP this past spring to denounce the Board’s decision. As a result, in September, the ASCAP Board rescinded the 10% Cap.
During the debate, some people tried pitting film composers against jingle writers, library composers against TV background writers, and songwriters against theme writers, suggesting that each group was trying to steal royalty money from the other. Luckily, few bought into it. They understood that any time ASCAP or BMI adopts a policy which blatantly discriminates against one particular group of members, everyone else is in jeopardy.
You might think that some of the larger publishing companies with heavy film and TV catalogs would weigh-in in favor of media composers, but such is usually not the case. Most of the giant music publishers (several of whom sit on the ASCAP Board) also have extensive song catalogs, and they have no incentive to change the current system-it’s just money out of one pocket into another.
Next winter there will be an election for a new ASCAP Board. It’s the one chance where members have a say on how the organization is run. (Of course, under the weighted voting system, ASCAP members who make the most money under the current system have the most votes, so getting new members on the Board is very tough.) Nevertheless, I urge every ASCAP member who is eligible to vote to send in that ballot, and remember: please vote only for those people you really want to represent you. Voting for famous names only raises the bar for everyone else.
Speaking of elections, let’s see what the ballot looks like this year. I’m sick of looking at lists of famous songs written by the candidates. How are we supposed to decide what kind of Board members they will make? And what about term limits for Board members? There are current members of the Board who have been on the Board for decades. I’m all in favor of experience, but at some point, experience becomes rigidity. Maybe it’s time for some of those who have served for decades to give others a chance.
Lastly, I’d like to say a few words about direct licensing. A few years ago, the composers and producers of news packages for local television stations went to ASCAP asking to be paid fairly for their performances. They were being asked by broadcasters to grant direct performance licenses, and they wanted to stay with ASCAP. ASCAP declined to make the changes in the distribution formula, scoffing at the idea that it might lose money. As a result, most local stations on a per-program license now have a direct performance license for their news themes, and even ASCAP admits the loss has been in the millions.
Direct performance licensing is spreading throughout the media music industry. It’s very possible that within a few years, most of the media music on TV (that is to say, almost 90% of the music on TV) will be directly licensed, and while the performing rights organizations will lose a large chunk of their income, broadcasters will end up keeping most of the savings, paying the composers a thin slice of what they used to pay to ASCAP and BMI.
The founders of ASCAP had it right. Get together, be unified, and protect each other. The forces which threaten to curtail or eliminate performing rights are strong, rich and well organized. No single composer or small group of composers and publishers will ever protect themselves for long against this threat. Ultimately, of course, we are all in the same boat. If we allow anyone to chip away at the rights of any composer or songwriter, we risk losing forever the rights and royalties which so many have worked so hard to win for us.