Your Public Performance Rights

By Robert Brode

This week we continue our series on artists’ assets. The series began with Artists House founder, and Grammy Award winning producer, John Snyder’s article entitled, "The Magic of Copyright". This was followed by, “Your First Asset: The Right to Reproduce,” the first in a series of articles that examine the rights an artist is granted upon creation of a copyright, and how these rights relate to licenses.

We now move to another of the six exclusive rights granted to an artist when they create a copyright: the right to perform the copyrighted work publicly. One key point of this article, as it relates to your overall sustainability as an artist, is that you must affiliate with a Performance Rights Organization (PRO) in order to avail yourselves of the financial and other opportunities associated with the exclusive right of public performance. The three dominant PROs in the United States are:

ASCAP
BMI
SESAC

Below you will find an explanation of what exactly these PROs do, and how they relate to your work as an artist, but, again, in order to benefit from your public performance right, you must affiliate with one of the three.

Please read these articles in sequence, but if you’d like to start here, or if you just want a refresher, we’ll begin with a general overview of how copyright is created, and what rights you are granted upon creation of the copyright.

To be a songwriter is a powerful thing. Once you write a song and fix it in a tangible medium, you become the proud owner of a musical work copyright. Your shiny new copyright comes with a set of powerful exclusive rights. These rights, which can be found in § 106 of the Copyright Act, consist of the following: (1) the right to reproduce the work; (2) the right to prepare derivative works; (3) the right to distribute copies of the work; (4) the right to publicly display the work; (5) the right to publicly perform the work; and (6) in the case of sound recordings, the right to publicly perform the work via digital audio transmission. *

If you've written a good song, others will want access to these rights; however, copyright law, with some exceptions, prevents anyone else from exercising these rights without permission from and payment to you, the copyright holder. As a songwriter, the quality of your songs generates attention but the copyrights in your songs generate income.

Although there are two "music" copyrights, the musical work copyright ("MWC") and the sound recording copyright ("SRC"), the copyright of interest to the songwriter is the MWC and the potential income streams it creates. These income streams rightfully belong to the songwriter; yet, many songwriters, uneducated in copyright, give these rights and accompanying income streams away freely. This article will examine one of the most valuable rights held by songwriters: the right of public performance.

Relevant Parties

The Songwriter: The songwriter holds the copyright in his or her musical work from the moment that work is fixed in a tangible medium (e.g., recorded on a $4 tape recorder, on an iPhone, in a million dollar studio, or written on the back of a cocktail napkin). Though the exclusive rights begin with the songwriter, writers commonly divvy up these rights and/or money generated there from among a few different parties. We'll look at some of these parties below.

The Music Publisher: Publishers are in the business of promoting and monetizing musical works. Songwriters generally assign their MWCs, in whole or in part, to a music publisher, along with the exclusive right to administer the compositions (e.g., issue all documents and collect all income related to the compositions other than the writer's share of public performance royalties, explained below).

Once the publisher obtains the right to administer a song, the publisher will (one hopes) work to find parties interested in using the song, license the song to those interested parties, and collect the income generated under such licenses (a percentage of which is kept by the publisher).

Performance Rights Organizations: Performance Rights Organizations ("PROs") negotiate licenses for the public performance of musical compositions, monitor usage of each musical composition by licensees, and collect and distribute income generated under such licenses. PROs do not take ownership of the musical works they license; they merely administer the public performance rights and royalties on behalf of music publishers and songwriters.

What is a Public Performance?

The Copyright Act gives MWC holders broad and exclusive public performance rights. The performance of a work includes both live performances and transmissions of performances (whether live or recorded). A performance is public if: (1) it occurs at a place open to the public where a substantial number of persons, outside of family and friends, gather; or (2) the performance is transmitted to such a place; or (3) the performance is transmitted so that members of the public can receive the performance at the same or different places, at the same or different times.

Don't be discouraged by tricky legal definitions. Most music performed outside the home in what most people would consider a public setting (e.g., at a club, at a sporting event, at a concert venue), or transmitted or broadcast to the public (e.g., via radio, television, webcast, or stream) is a public performance that requires a license from and payment to the MWC holder. ** Monies earned from licensing public performance rights are called public performance royalties.

The Copyright Act also affords some public performance rights to SRC holders but these rights are very narrow and therefore less valuable. A SRC holder's exclusive public performance rights only apply to public performances via "digital audio transmissions," such as satellite radio, cable systems and online streams or webcasts. SRC holders, unlike MWC holders, are not paid for public performances on broadcast radio, television, or at nightclubs or sporting events.

PROs: Backbone of the System

Now you are ready to negotiate licenses with thousands of nightclubs, arenas, radio and television stations and webcasters for use of your musical works and collect payment for those licenses!

You aren't?

Don't panic the task of negotiating public performance licenses, monitoring usage, and collecting and distributing public performance royalties is handled for songwriters and publishers in the United States by three performance rights organizations: ASCAP, BMI and SESAC.

Becoming a member of ASCAP or affiliating with BMI is quite easy and can be done online at www.ascap.com or www.bmi.com respectively. Membership requirements for each are fairly basic. To join ASCAP, you must have written, co-written, or published a song that has been:

1. commercially recorded (CD, record, tape, etc.); or
2. performed publicly in any venue licensable by ASCAP (club, live concert, symphonic concert or recital venue, college or university, etc.); or
3. performed in any audio visual or electronic medium (film, television, radio, Internet, cable, pay-per-view, etc.); or
4. published and available for sale or rental.

The requirements for BMI are the same, except writers of works likely to be publicly performed may affiliate with BMI.
ASCAP charges $35 per application, whether it is as a writer or publisher. BMI does not charge writers but charges individually owned publishing companies $150 and formally organized corporations $250 to affiliate. There are no fees associated with joining SESAC; however, SESAC, unlike ASCAP and BMI, is very selective in their affiliations.

The most common type of license issued by the PROs is called a blanket license. A blanket license allows a user, such as a TV or radio station, to publicly perform all the works in that PRO's catalog as often as desired for the term of the license. PROs also grant per-program licenses and permit publishers and writers to license directly to users should they choose. The PROs use complicated formulas to calculate the appropriate sum to be paid to each songwriter and publisher based on the money collected in a given year and the number of public performances of a particular song. Each PRO calculates the value of each public performance differently, so co writers of a song belonging to different PROs may receive checks in different amounts.

PROs calculate the number of public performances for any given composition through various survey and sampling methods. Translation: Not every public performance is accounted for, so your royalty statement may not account for the one spin your song received at a small radio station in rural Mississippi before the sun came up on a Tuesday morning in December.

PROs divide public performance royalties equally between the songwriter (the "writer's share") and publisher (the "publisher's share"). If you don't have a publishing deal, you should join your chosen PRO as a writer AND a publisher, and collect both the writer's share and the publisher's share. BMI makes quarterly payments while ASCAP makes separate quarterly payments for domestic and international royalties for a total of eight payments in a calendar year.

Value Your Rights

Now that you've seen just a small example of how valuable your rights can be, I hope you'll be very careful before signing a contract transferring any of those rights. Most of the players in the music industry require use of the exclusive rights held by songwriters and music publishers to function. A radio station can't play a song unless that song is licensed by the MWC holder (or, as you just learned, by a PRO on behalf of the copyright holder). A producer of a television show can't use copyrighted music in his/her television show without a license from the MWC holder and no television station can broadcast that producer's show featuring the copyrighted music unless the station obtains a public performance license for the song with the MWC holder's PRO. A record label can't release a recording of a previously unreleased song to the public without permission of the MWC holder.

Take note of the power you hold as a songwriter. Remember that your work is valuable. With a bit of luck, a good song will make money. If you're knowledgeable about your rights, you can ensure that money goes into your pocket, where it belongs.

Please feel free to post questions as comments, and we'll do our best to answer them

*Note the sixth right applies to the public performance right held by sound recording copyright holders and does not directly affect the songwriter as a musical work copyright holder.

**Certain public performances of musical works are exempt from the generally applicable licensing and payment requirements. Movie theaters (in the U.S) are exempt from obtaining and paying for licenses to publicly perform music heard in films shown in their theatres. Public performances of musical works in educational settings or religious services do not require public performance licenses. A small business communicating a transmission of a radio or television broadcast does not require a license to do so if the establishment meets certain requirements relating to the type and size of the business and the placement and number of loudspeakers, among others. 17 U.S.C. § 110.

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Robert Brode is an attorney who practices entertainment law with the law firm of Stone Pigman Walther Wittmann, LLC in New Orleans, LA. Mr. Brode graduated magna cum laudefrom Tulane University School of Law in 2007. Before becoming a lawyer he worked for record labels, record distributors and record retailers in addition to time spent as a music journalist and television show host. He teaches Introduction to Music Business at Delgado Community College, is an active member of the Recording Academy and serves as a judge for the Entertainment Law Initiative.

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Comments

[Steven Cravis]

Question for Robert Brode: If the content creator's songs are copyrighted and listed with the content creator's PRO, and through an agreement licensed, as in one time fee that is negotiated with a filmmaker for example, and that filmmaker later gets major network distribution of their film, are the TV networks responsible later for paying the (ongoing per broadcast) PRO fees or is the filmmaker responsible for paying those PRO fees?

Thanks.

[Kyle Hamilton]

Please go into more detail about "previously unreleased song," and what it means? Is there some magic that happens when a song is released?

(regarding: "A record label can't release a recording of a previously unreleased song to the public without permission of the MWC holder.")

[Alan]

Here's the truth. Most of us smaller artists and songwriters never see a cent when they give away their rights to any of the Copyright organizations.
When you, the songwriter/artist perform your own songs somewhere, the copyright organization will charge the club or promoter up to 300 bucks for "copyright". How much can you expect back from that? Zero! It ends up with Universal, Lady Gaga etc. but your gig just got 300 bucks more expensive to the promoter and he may pass on booking you altogether.
Unless you are with a major label, don't bother giving your money away to the ASCAPS, PRSs, Bumas, Gemas etc. of this world.
Keeo your rights, keep your money.

[toxic crow]

i wanna registrate ascap and bmi but i am n0t living in usa.

[Vivek Khurana]

Another Question for Robert Brode: You mentioned that if you do not have a publishing deal, you should register with your PRO as a writer AND a publisher. We, Love and Erosion, are with BMI as writers, we have 100% ownership each of the 10 songs on our first album. Does this not account for the Publishers share? I'm very confused as to where the Publisher's share will go if you do not indicate a Publishing company, does the licensor just keep it? Please expand as much as possible on the issue we're having as two songwriters putting out music. Thanks!

[Roger Hudson]

I'm still uncertain as to what to do. Do I sign a contract that transfers copyright ownership to a publisher or not? Is this standard procedure or a red flag? Contract says that a certain % of sales (printed music) goes to me, publisher manages mechanical licenses, etc. Very good, concise article --- Thanks!

[saxx]

how can i get payed for streaming of my music>??
[email protected]
if i have published material in the market place such, as an album.ringtones,singles, song in rotation on sevreral fm syndicated stations that all pay out royalties?

[Ken Dulin]

here is a good one ,in 1972 I was all signed up with BMI ... in 1989 Clint Black and his helpers ,used my music on three songs and did not get caught by BMI ,because they took them to asap , I have lost millions .

[gregory]

i would like to get in with BMI but i am living out side of the use how dos this work?

[Steve Weber]

Circular R56a (copyright office) states;
Only if the same person or organization owns the copyrights in both the MUSICAL COMPOSITION and the SOUND RECORDING-May form SR be used to register both the musical composition and the sound recording embodied on the same phonorecord.
In this case in space 2 "Nature Of Authorship", be sure to describe both kinds of authorship-the musical composition("music", or "words and music") and the sound recording("performance," "recording," or both).

[Billy Anne Crews]

TO Vivek Khurana, when you signed up with BMI, you should have created a writers and publisher account if you arent already associated with a music publisher. Just call your contact at BMI and ask them to explain it to you. Much Success to you and all your endeavours. -BAC

[Nicole]

Tunecore should investigate who their affilaites are.Through Jango, I sign up with a company called Youlicense.At first I thought that this was an American company, but it happens to be a British company.Youlicense supposedly helps you to get your music into films and tv and commercials.I received a contract from a British company through Youlicense.In this undated and unsigned contract, they told me I would have to give up all my rights and that they would pay me 15 pounds or less for that song.Thank God I am affiliated with ASCAP and have educated myself in the world of contracts.I didn't accept the contract.I would advise every songwriter to join a PRO, educate yourself in the world of your rights and contracts.And beware of companies from Britain.You may lose it all and get next to nothing for your songs.As for getting your songs on the radio, there are way you can do it for free without the help of a major label and without paying a company to it for you.You just have to look around.

[Rob]

I would tend to agree with Allens comments,unless your signed with the Majors there's no real benefit to joining a PRO . In fact you'll probably just end up paying more in fees and such than you'll ever see in any tangible form of royalties. Like most huge organizations the only people who get rich from them are the CEO's who run them.

[tonyt]

i am a prs member in the uk for a long time what a bout the us coppyright day can send my money to the prs in the uk tell me

[ThisIsFLawLesS]

When you perform in a public place such as a club or concert, are you supposed to notify your PRO so they can administer the license or is this something the artist does themselves? How exactly does a PRO know when a song is being performed to be able to pay? Does the artist negotiate a fee with the person booking them as an act for the licence? I'm just rying to get some clarity. Thanks

[SteveDaMlb]

GREAT ARTICLE! IM A PRO! FOLLOW ME HTTP://WWW.TWITTER.COM/STEVEDAMLB AND CHECK ME OUT @ HTTP://WWW.REVERBNATION.COM/STEVEDAMLB

[Peter Princiotto]

I am a composer and musician, and affiliated with BMI as both a writer and a publisher. My works (mostly progressive rock) have been aired over the years, however, I have hardly received any monies from BMI. Any insight on how to collect royalties would be greatly appreciated.

[Richard Gallacher]

hi my name is richard gallacher and im a writer , singer/songwriter , recording artist and performer, could anyone tell me anything good or bad about www.zebralution.com , www.jangoairplay.com and www.taxi.com
thank you.

[BIG DIP / DANNY]

http://www.facebook.com/pages/BIG-DIP/155785377771814#!/pages/Bombay-Rockers-The-truth-of-their-fame-and-Fortune/281715267331?ref=ts

This story will make you sick, that some places in the world we live in arent currently under any form of copyright at all... BIG DIP...

[Bryan Dennis, BMI member]

re: Vivek Khurana on 9.2.2010/ 7:25PM - The strange and confusing thing about the way royalties are paid to the writer and the publisher by the PROs, is that each one gets 100%. If you are both the writer AND the publisher, you will receive royalty checks amounting to 200%.

I told you it was weird.

[Bryan Dennis, BMI member]

re: Peter Princiotto | September 03, 2010 at 10:46 AM

You might contact the Harry Fox Agency to assist you with royalty collections. They take a piece of your money, but it's better than getting juked entirely.

[Bryan Dennis, BMI member]

re: Rob | September 03, 2010 at 03:12 AM

Hi Rob, I will have to disagree with you about only joining a PRO unless you are signed to a major label.

Since I signed with BMI a few years ago, I have NEVER paid a fee, dues, or any other money to them. Second, the only reason that I receive royalty checks is that I belong to a PRO. I have had songs publicly performed before I joined BMI and didn't get paid squat.

Now, I do.

Yep...I get paid just a little above squat.

I recommend joining a PRO of your choice to any copyright holder if you are getting SIGNIFICANT airplay. If your song gets played once or twice by a college radio station or even a major ClearChannel station on a "Locals" show, you probably won't see a dime. You have to be getting regular spins on several stations in several parts of the country for awhile to give the PRO a chance to spot you on a sample.

I wish you all the very best in your music careers!

[Lisa]

My songs are registered with the PRS. How does this work? Is it necessary also to join one of the other bodies?

[Axl]

How much do you earn from having a song you produced play on a major radio channel ?

[Robert Brode]

@Axl,

Mr. Rose I presume?

First things first, are you a co-writer of the song you produced? Only writers receive royalties from broadcast radio play. So while producers of rap songs that write the music (i.e. the beats) are writers of the songs they produce, producers in other genres of music aren't generally co-writers and therefore wouldn't receive public performance royalties from radio play.

As to the amount, I'm afraid it isn't as easy as saying you earn X every time your song is played on the radio, there are many factors that go into determining the amount of royalties earned and each PRO uses a different formula, BUT the more times a song is played and the more times it is played on larger stations, the more money you are likely to earn.

[Robert Brode]

@Lisa,

Lisa, if you're registered with PRS for Music I presume you're located in the U.K.?

PRS for Music collects money from the U.S. based PROs for public performances of its members' works in the United States, so no, if you're registered with PRS you do not need to join ASCAP, BMI or SESAC.

[Robert Brode]

@Bryan,

I'm not sure where I wrote that only songwriters signed to major labels should join PROs and if I did say that, it was a major typo! Any songwriter that is likely to have any of his/her works publicly performed should join a PRO whether they are signed to a major label, independent label or no label at all.

[Robert Brode]

@ThisIsFlawless, no, it is not the artist/songwriter's responsibility to negotiate a license with the each venue, that is why he/she joined a PRO in the first place! Each venue must obtain a blanket license from each PRO to ensure that all songs played in that venue are properly licensed. All fees are negotiated between the venue and the PRO.

[Robert Brode]

@Peter, you should contact your BMI representative: http://www.bmi.com/about/entry/533332

[Robert Brode]

@Bryan, I misinterpreted your post and didn't realize it was in response to commenter Rob and not me, my apologies.

[Bolden]

My husbamd is a writer,composer, and publisher with BMI. He has an independent
label. Is it right for people to buy his
cds,make copies, and sell them on the internet? Thank you for these article.
Keep up the good work.

[Michael McLaughlin]

I have a question if you could possibly help. I just signed 14 songs to a music library under a non-exclusive, retitling deal. Now that I've researched it more, I realize this was not the smartest thing to do for various reasons.
Worse is that I re-read my contract and this library receives 100% of performance rights, while giving me 50% of sync fees. Now, upon reading up on their site, I see that they are giving away free sync fees and free master recording fees for anything in their catalog used in TV and major motion pictures if the users are major studios such as Warner Bros, etc.
To get these free licenses, the studios must pay a blanket fee to performance rights organizations.
I have tried to find the answer myself, but I still can't really tell if there is any money to be made from these blanket fees. If a sync fee being paid by a major motion picture studio generates $50,000, the songwriter (and performer) could at least make $25,000.
But if the sync fee is FREE under the terms of a performance organization's (BMI, ASCAP, etc.) blanket fee, how much would the music library OR the songwriter receive?
Clearly, my not having any percentage of performance rights is not good. But doesn't this also mean I would scarcely make a dime from any of my 14 songs residing in this library?
And is there any way for me to get out of this contract? My contract certainly does NOT tell me that the library is giving away sync fees and master recording fees!??

Thank You,
Michael McLaughlin

[Michael McLaughlin]

I should probably add that this music library retitled all of my 14 tracks without ever telling me they were going to.

[anonymous]

I am CO-Producer and Co-Director of a show currently running in Los ANgeles.'I am also a hit songwriter nominated for Grammys'
There has been a massive "coup"---illegal and now in the hands of the lawyer---by my equal partner that has resulted in damage to my reputation as a seasoned well-known songwriter and director.

They are still using my song as their theme song as well as other musical works of mine.
I gave them permission to use my song in the show which they are doing ...so they illegally are trying to kick me out but still use my songs.
Can I take back permission for them to use my song based on the fact that it was given to them for free under the false pretense by them that I was Co-Director and CO-Producer?

[Barbara]

If one is a niche performer composer it is very difficult to get paid exposure. Without exposure you can't get anywhere! There are many radio stations starting up now that will happily play little-heard genres of music from new musicians but with the proviso that they pay no royalty fees. They often provide an opt-out agreement concerning this. The stations get to play music and musicians get free exposure. I would be interested to hear what you think about this. Is it equitable? How is new blood going to break into public consciousness? If one doesn't tour it can be very hard indeed.
Barbara