Where’s The Beef? PRO Policies and the Nondisclosure of Music Usage in America

Film Music Institute > Film Music Magazine (Archives) > Royalty Checks and Reality Checks (Archive) > Where’s The Beef? PRO Policies and the Nondisclosure of Music Usage in America

“We have learned that a right that goes unadministered
can be forever lost. We have learned this.”
— Prof. Dr. Jurgen Becker, Executive Director of GEMA,
the Performing and Mechanical Rights Society of Germany.

Most of my catalog as a composer is in feature film scores, themes and series television— even a couple of musicals— so I’m not particularly predisposed to be a rabid advocate of CPA music. In industry jargon, that’s music used in commercials, promotional spots, film trailers and company logos.

But I will claim advocacy for strong music copyright overall, and one can’t help but observe the enormous prevalence of music used in American broadcast advertising. “It’s everywhere you want to be”— and in abundance. Strangely, this category of music is treated rather like a pariah by our performing rights organizations (PRO’s). Better swept-off into a closet like some evil stepchild, seldomly discussed and then reluctantly.

So, what’s the actual beef with this category of music? It’s the same beef as in all domestic usage categories— known as feature performances, themes, so-called “background” instrumental and CPA music. There are no available industrial statistics which tell us how our music is utilized. Let me demonstrate this with an initial question: In a given year, what percentage of television spots containing music utilize popular songs in contrast to the percentage of spots which utilize instrumental post scores or cuts from music libraries?

This is of vast economic significance because certain pieces of music (typically songs qualified by radio plays) earn 400% more money than instrumental scores or jingles when used in advertising. Start thinking along those lines, and then broaden the scope of your queries about how music is used in American broadcast media.

Composers and songwriters are kept utterly in the dark about the numeric versus durational prevalences of usage categories. Numeric refers to the number of instances of plays in a given category. For example: ‘KZZZ-TV broadcast 25,000 CPA performances in the first quarter of the year.’ Durational refers to the aggregate lengths of plays in a given category: ‘KZZZ-TV broadcast 1200 hours of “background” instrumental in that same quarter.’ Are you having any difficulty correlating the number of plays performed in one category to the number of hours performed in another category? You’re not alone— they’re apples and oranges. Still, this fruity concept remains a cornerstone of domestic royalty distribution— unlike anything we can find in Europe or elsewhere.

The question remains: does distribution based on non-correlative elements inherently advantage one member group over another? For lack of hard data, I can’t prove or disprove this hypothesis. I will attest that executives, board members and Member Services staffers at ASCAP have declined to substantively answer questions regarding usage weightings and their resulting effects on distribution. It’s a black hole; a data void. (For a more complete description of PRO usage categories, please go to: www.filmmusicmag.com/columns/rck/rckv03n01.html)

Further, and perhaps even more significant, is the unpublished nature of the substance and functions of PRO samples, surveys and other monitoring methodologies. In a digital age, how statistically accurate are the methods employed by our PRO’s? What percentage of American music broadcasts are actually monitored and paid, and what percentage is ignored? As it is, no such reports are available to members and affiliates of America’s PRO’s. Simply put— we know very little about the statistical effectiveness of music performance administration in the United States.

Now, glance up at Prof. Dr. Becker’s statement, above.

Don’t take my word for this lack of disclosure, try it for yourself. Contact your PRO representative and ask what percentage of music on network television constitutes feature performances, themes, instrumental score and CPA music. Or, you could direct your question to address premium or basic cable usages, local television, radio— whatever venue or medium you wish within a given period of distribution..

To get the actual picture, your question should be asked in two ways: the percentage of instances which were counted in every usage category, and secondly, the durational prevalences as well. You see, only “background” instrumental is paid strictly by minutes & seconds. This enables at least one domestic PRO to pay a 1-second feature performance the same royalty as 90 seconds of post scoring. There’s a great distributional significance to music royalties paid by instances in contrast to durations. This is especially true in conjunction with what a sample or a survey is actually designed to find. Finally, is 50% of network televison revenues distributed to music occupying less than 5% of the airtime? Amazingly, we’re not allowed to know statistics of that nature.

So, as far as your queries go, you won’t get any substantive answers. You’ll be kept in ignorance about how music is used in America. A PRO can say the data is “proprietary” and that disclosure might compromise their negotiations with broadcasters. What a crock of propaganda! The broadcasters can find out anything they wish through the discovery processes afforded them under the law as enforced by the United States Department of Justice and adjudicated by the Federal Court of the Southern District of New York. The fact is, nondisclosure of basic data is an age-old ploy to keep folks in the dark. Ignorant people are those most easily subjugated. And sadly, subjugated people lose their rights. Lots of rights.

Even a cursory examination of the landmark lawsuits against domestic music copyright over the past 50 years reveals an alarming pattern. Many of our rights as American music creatives have been diminished or eliminated entirely; rights that are healthy and enforced throughout most of Europe and in the great majority of industrialized nations around the world.

In this context, let me again call your attention to Prof. Dr. Becker’s statement above— the most profound quote I’ve ever heard from a performing rights executive. I admire his statement because it smacks of the truth. American composers and songwriters should be wary of rights that go unadministered— because history bears testament that those rights can go away.

Think it can’t happen here? It already has. There are no royalties paid to music performed publicly in films and trailers exhibited in American movie theaters. At one time, those public performances were paid. There are no statutory royalties paid for film music contained in domestic videocassette and DVD releases for sales and rentals. Yet these mechanical royalties are routinely paid throughout most of Europe and much of the world. Only American instrumental score is subjected to crushing usage weightings— unlike any other distributional scheme in the world. As for the percentage of American TV & radio music performances which actually receive a royalty? We’re forbidden to know.

Getting back to CPA music, I’d like to have anyone interested in music copyright peruse the following list and proclaim that music used in advertising and promos is of little or no inherent value as per the performing right. Yet, what percentage of CPA performances in America are actually administered? Again, we’re not allowed to know. We don’t know what happens inside of that black bag of certain non-transparent aspects of PRO operations. In the meantime, unadministered and mismanaged rights can be forever lost.

As composers and songwriters, we pay our PRO’s to administer our performance royalties. We’re entitled to full disclosure as to how our music is utilized in American culture. Ask for it by name— “Where’s the beef?” That is, where’s the substantive proof of fair and effective performance administration by our PRO’s in every music usage category?

Songs Licensed For Use in American Advertising & Promotions
Partial Listing / Television Broadcast, 1999—2000

Title Product or Company
Makin’ Whoopie Cadillac
(Somewhere) Over the Rainbow Dial soap
(Somewhere) Over the Rainbow Oldsmobile
Right Here, Right Now CBS Network Promo
Ev’ryday People Toyota Camry & Corolla
The Best Is Yet To Come Nestles’ Drumsticks
Kokomo / The Beach Boys (parody/promo) David Letterman Show
Fever (French commercial used during Olympic feature segment) Sanex Toiletries
Fever Harrah’s Hotel & Casino
All Together Now AT&T
Love Is Feeling Johnson & Johnson
Stand By Me Buick LeSabre
Don’t Worry, Be Happy Alamo Car Rental
(Do) The Hustle MCI
Please Release Me Direct TV
If You’re Happy And You Know It Hartz Advantage
Take Good Care Of My Baby General Electric (Ultrasound Imaging)
Mr. Big Stuff “Primary Colors” trailer (starring John Travolta)
Let It Snow, Let It Snow. . AT&T Cellular Services
City of New Orleans (Good Mornin’ America, How Are Ya’?) Ex Lax
The Very Thought Of You Jaguar
One (Singular Sensation) from “A Chorus Line” Sunkist Oranges
Tonight (from “West Side Story”) Mountain Dew
The Slinky Jingle Isuzu Amigo
Makes Me Feel Fine (Summer Breeze) Hampton Bay Fan & Lighting
(Ya Know It Makes You Wanna) Shout Shout (S. C. Johnson Wax)
I’ll Take You There Chevy Malibu
One (Is the Loneliest Number) Burger King
She Works Hard For The Money Burger King
How Sweet It Is (To Be Loved By You) Burger King
Things That Make You Go Hmmm (adapted to Mmmm) Burger King
(A) Second-Hand Emotion Burger King
King of the Road Burger King
In The Mood Burger King
Ain’t No Mountain High Enough Burger King
America Burger King
Lovin’ You Burger King
I Believe in Miracles Burger King
I Believe in Miracles Jergens Lotion
I Believe in Miracles “Millenium Man” promo (starring Robin Williams)
Theme from “Rawhide” Wal-Mart
Play That Funky Music, White Boy Lancombe / Macy’s
Play That Funky Music, White Boy DuraCell Batteries
One Less Bell To Answer “Home Improvement” Promo
(There’s a Reason) Let Your Love Flow Pier 1 Imports
(Oh, Oh, Oh, It’s) Magic AT&T
Simply The Best Toyota
Simply The Best Celebrity Cruises
Battle Hymn of the Republic Mercedes-Benz
Don’t Stop ‘Till You Get Enough Treetop Apple Juice
Bad to the Bone / Groovin’ On A Sunday Afternoon Cadillac
Kum Ba Ya Tostitos
Make Someone Happy Kay Jewelers
Feelin’ Alright Nisson
How Come You Do Me Like You Do? Lemon Pledge
Oh I E Vie Mervyn’s California
Fame (I’m Gonna Live Forever) Maytag
Time of the Seasons Tampax
I Feel Pretty (from “West Side Story”) Intel
Mister Roboto Volkswagon
(This Will Be) An Everlasting Love Red Lobster
I’ll Be Seeing You Transition Lenses / JC Penney
(It’s) A Sign of the Times Target stores
I’ll Be There Blockbuster Video
It’s a Wonderful World Nasonex Inhaler
It’s a Wonderful World Estee Lauder
Look For The Silver Lining Turner Classic Movies
I Believe I Can Fly MCI
Come Together Nortel Networks
You Better Shop Around Burlington Coat Factory
C’mon Get Happy (Judy Garland vocal) Clinique
(I’ve Had The) Time of My Life Sandals Resorts
I Want To Get Away Nisson X-Terra
What’s New Pussycat? Kraft Foods
Stayin’ Alive Surge soft drink
There’ll Be Some Changes Made T. J. Maxx
There’ll Be Some Changes Made Club Med
Can’t Touch That “The Muse” (film trailer)
Get On Your Feet Toyota National Clearance Sale
(I’m Just A) Love Machine Denny’s restaurants
As Time Goes By BV Winemakers
Fly Like An Eagle U.S. Postal Service
(I’m a) Yankee Doodle Dandy U.S. Postal Service
(Won’t Be Fooled Again) Who Are You Nisson Maxima
(After Midnight, We’re Gonna) Let It All Hang Out Rio Hotel & Casino
That’s Amore Dodge Neon
Night and Day Lady Speed Stick
Night Fever Sprint
S’Wonderful Allstate Insurance
Who’s Sorry Now? Allstate Insurance
Feel Like A Woman Revlon
One Way or Another Snoops (series promo)
(Hey There) Lonely Girl Toyota Camry
Out Of My Dreams Mazda
Take Me Out To The Ballgame Country Time Lemonade
In My Life / Dress You Up In My Love The Gap
Mellow Yellow The Gap
When The Red, Red Robin Comes. . . Lunchables
Spinning Wheel Pets.com
I’ve Got The World On A String Hanes Her Way
Papa Loves Mambo Hanes underwear
Ode To Joy (fourth movement, Beethoven’s 9th Symphony) Starz cable channel
Everybody Wants To Rule The World “The West Wing” series promo
Blue Skies Claritin
On The Road Again Progressive Insurance
C’mon To My House Target stores
You Can’t Always Get What You Want Motorola
Temperature’s Risin’ Velveeta
Someone To Watch Over Me HBO promo
Get Down Tonight ABC promo
When You’re In Love (It’s the Loveliest Time of the Year) – Mercedes-Benz
Gettin’ Better (All The Time) Philips (Flat TV)
Silver Bells MCI
Have Yourself A Merry Little Christmas Glade air freshener
Saved The Best For Last Lincoln Continental
Watermelon Man Aetna
Downtown Good Morning America promo
Come On Over (Come On In) Good Morning America promo
In My Room Behr Paints
Whatever Lola Wants (from “Damn Yankees”) Levi’s
Ain’t She Sweet “The Relic Hunter” UPN promo
Bend Me, Shape Me Anyway You Want Me Flexon Glasses
I Just Wanna Celebrate / Ev’rybody Look What’s Goin’ Down “3 Kings” promo
The Look of Love Scope mouthwash
(Try To Love One Another Right Now) Get Together NBC Today Show promo
Wouldn’t It Be Loverly (from “My Fair Lady”) Lazyboy
Shake Your Booty (adapted to Bake Your Cookies) Nestles’ Tollhouse cookies
Getting To Know You (from “The King & I”) IBM
Let Me Stand Next To Your Fire Pontiac Sunbird
Joy to the World Polaroid Joycam
(I’ll Be Loving You) Always ”The Best Man” trailer
I’m Too Sexy. . . Toyota Camry
Can’t Take My Eyes Off of You (Too Good To Be True) Hallmark Cards
I’m the Happiest Girl In the Whole USA Nordstrom’s
I Love the Night Life Sprint
Shake, Rattle & Roll / A-B-C Rock ‘n’ Roll Elmo
I’m Walkin’ On Sunshine Claritin
Let It Be NBC promo
It’s Your Thing (Do What Ya Wanna Do) Lilly Humulin Pens
I’ll Never Make the Same Mistake Timberland
(This Will Be) An Everlasting Love National Football League
Twist & Shout Samsung Digital
(Memories Are Made of These) Sweet Dreams Are Made of This Honeybaked Ham