(Public) Performance Anxiety

By Jeff Price

So here’s a perspective on performing rights organizations I just got my head around and I wanted to share.

First, some quick background, and for those of you who already know what a public performance is, just skip down a few paragraphs.

For every recorded song there are two copyrights: one for the recording of the song (usually owned by the record label), and one for the song itself, the music and lyrics (owned by the songwriter/publisher).

To use the now beaten-to-death example, Dolly Parton wrote the song “I Will Always Love You.”  Columbia Records hired Whitney Houston to sing a version of Dolly’s song.  The version of this recording of the song is owned by Columbia Records, but the copyright to the song itself (the music and lyrics) is owned by Dolly Parton.

As Dolly owns the song (‘cause she wrote it) she gets six legal copyrights, and these six rights drive the entire music industry.  You can download a free PDF booklet on them here.

One of these copyrights is the exclusive right to “Publicly Perform” the song.  Under this copyright law, a songwriter is granted the exclusive right to publicly perform his or her song. A public performance is when a song is played on the radio, in a bar, in a restaurant, live in a venue, on TV, in an elevator, in a retail store, streamed on the Net via YouTube, Pandora, any streaming music service, or anywhere else that falls under the legal definition of “public performance” (you can read the legal definition of Public Performance here ).

This means that no one else can “publicly” play your songs (either your own recording of it or someone else’s recording of it) without negotiating a license with the publisher or administrator (which, most likely, is you).

Sounds good to me, songwriters should be rewarded for their talent.  After all, songwriters, like all artists, make culture.  But let’s turn to the reality of this law. To assure that your song is not being publicly performed without your OK, you need to run around the world and listen to what is being played in restaurants, bars, elevators, hotels, TV shows, retail stores, venues, bookstores and more.  In addition, you also have to watch every video on YouTube that has a song in it, get a list of every song that was played by every streaming music service, get every playlist of all the songs that were played on every radio station and the list goes on and on.  And when you find a place that is playing your song without your OK (meaning no license was granted to them by you) you get to sue them or force them to pay you.

On the other side of the coin, if there is an entity that wants to comply with copyright law and get a license to publicly perform your song before they do it, they need a place to go to get the license. This means they would need to go to millions of songwriters around the world, and if they can find all of you, strike million of different deals.

In other words, it’s a great element of copyright, but one that is tough (impossible!) to enforce, license, track and police on your own.  So what’s one to do?

This is where the three U.S. Performing Rights Organizations (called “PROs”), BMI, ASCAP and SESAC come in.  These three organizations might not have been built to work for publishers, but these days they sure do.  Writers and publishers enter into an agreement with a PRO that allows the PRO to act as the writer/publisher’s representative specifically and ONLY for public performances.  The PRO performs all of the duties listed above.  This grant of rights from the writer/publisher to the PRO allows the PRO to negotiate rates on their behalf with various entities that desire to publicly perform the works of the writer/publisher.  In addition, this grant of rights allows the PRO to collect the fees on behalf of the writer/publisher.

In return for these services, the PROs take a percentage of the money they collect to offset their costs and pay for lots of other things like cars, salaries, office space, lunches, etc… (go to page 18 of the ASCAP 2010 year end report to see some of the line items ).

Case in point of the public performance police in action, check out ASCAP’s recent lawsuit against a bar in New York for having a Bruce Springsteen cover band night, but not paying Bruce, represented by ASCAP, for the right to publicly perform his songs (note, it was not Bruce who sued them, it was ASCAP on Bruce’s behalf.  The article gets it wrong).  And before you get angry with ASCAP, remember, this is their job!  They should be doing this.  They are protecting and enforcing the rights they represent.  Perhaps they could have handled it a bit more diplomatically, but this is what they do.

Now this next point is key, this right to publicly perform is controlled by the publisher.

For example, if you write your own songs, you are, by default the music publisher. This means that, until you assign your publishing to a publishing company, you control both the “writer’s” share and the “publisher’s” share of the rights to the songs you write. If you enter into a music publishing deal, you then transfer your rights to this other entity and they then represent you for music publishing.

However, even major music publishing companies like Sony/ATV, Warner Chappell Music Publishing, Universal and EMI don’t have an infrastructure to track and police public performances.  They too “hire” a PRO and rely on the them to police, license, collect and disburse public performance income.

For those of you out there who state:

“Waaaaait a second.  How can you say that?! The PRO represents the songwriter, not the publisher! Of the money the PRO collects, they send half to the songwriter and the other half to the publisher to assure songwriters get paid.  Their entire existence is to serve the songwriter”

True, they do, and I am glad they do it! But, as I understand it, the idea of paying the songwriter directly originated with the PROs, not with a law.

Remember, in the “old days” most signed artists and/or professional songwriters did deals with publishing companies.  When they did, they transferred their right of public performance (along with others) to this other entity.

When the PROs were “hired” they simply refused to pay the publisher all of the money they collected for public performance.  This assured that songwriters made some additional money.  The PROs did not want songwriters that transferred their publishing rights  to get screwed by wonky accounting or get nothing as they had not earned back “advances” from the publisher. Therefore, the PROs insisted that half of the money they collected (after they took a % off the top) get paid directly to the songwriter. The PRO was there to protect the songwriter and this model of direct payment to the songwriter for half the money became industry standard.

However, the publisher has the power to undermine the PRO. The music publisher has the public performance right to grant; therefore it has the control.  In other words, if a songwriter does a deal with a publishing company, like Warner Chappell, and then signs up as a songwriter with a PRO, like BMI, the publisher can undercut the songwriters relationship with the PRO by not granting the PRO the right to represent the public performance of that songwriter.  To this point in time publishers have not done this and also agreed to hire the PRO. In return, they give up some of the money collected.

Which then leaves the door open for changes to occur.  What happens if a music publisher no longer needs a PRO to collect and monitor some of the public performances?  For example, YouTube.  YouTube has a sophisticated tracking system that can accurately track how many times a song was played in a video.  It’s an automated system that can spit out reports and email them to publishers.  Same with Spotify and the new Apple iMatch service and many others.

In these cases, why would a music publisher want to have its YouTube, iMatch, or Spotify public performance money go to a PRO who is going to take 12.5% of the money off the top (remember, all the overhead mentioned above) and then only pay the publisher 50% of what’s left (remember, the other 50% gets mailed directly to the songwriter)?   They wouldn’t, which is why they have started “going direct” (see the ground-breaking EMI announcement). In this case, EMI is collecting all of the public performance income directly, and will only pay the writers if the writer is recouped.

So what will be the impact of this new trend?

First, My heart goes out to the “legacy” artists who did deals with the old school music publishers.  Many of these songwriters received “advances” from the publishers that must be paid back before they get more money from the publisher.  When the PRO was collecting the public performance royalties, it took a chunk off the top, but from what was left, 50% was mailed DIRECTLY to the songwriter and the other 50% went to the publisher; the songwriter was assured to get additional money from public performances regardless of whether or not they were recouped with the publisher.  In this new “direct” model, the PRO is cut out.  Therefore, if a songwriter is unrecouped with a publisher, they get no money from public performances. Frankly, this kind of sucks.

On the other hand, for the new music industry artists that control their publishing rights and do not have “unrecouped” balances, they could potentially hire an entity like a TuneCore to go “direct” with places like YouTube, Spotify and Apple, thereby getting more money into their pockets more quickly and with more transparency.  This is a great thing for songwriters.

As for digital stores and services, they are going to have to deal with the new reality that they cannot just go to a PRO like BMI/ASCAP/SESAC to get public performance licenses for all the music in their stores.  Despite this, many stores and services are stating they refuse to go “direct” as it’s a “headache,” but there is no way around it.  The law requires them to get a public performance license in order to have the music in their store.  For example, EMI “withdrew” its catalog from ASCAP.  This means a digital store will now need to go to ASCAP for the songwriters/publishers it represents as well as go to EMI Publishing for the songwriters it represents.  The stores and services cannot just say “we don’t want to deal with EMI because it’s a headache.”

The bottom line is that as technology makes it easier to track all public performances that occur online, the ”old school” methodologies and business models need updating as well.  Artists and songwriters should be able to get as much of their money as quickly as possible with as much transparency as possible. They should not be told “that’s the way it was, so suck it up and shut up”.  It’s beyond bizarre that this point has to even be argued.

More and more artists are now the record label, performer, publisher, songwriter, etc…  They are able to control and exploit all of their rights associated with the copyrights to their work.  Like all of the old entities, they must make certain that they are getting all of their money, and as much of it as possible, from all the available revenue streams.  Public performance—once the bastard step-child of the six rights; frequently ignored, almost always misunderstood by all but the most successful artists (i.e. those with lots of radio play)—is increasingly becoming the most important right with respect to its relationship to revenue.  Collection and tracking of this right must innovate at the same speed that usages do.

And we intend on helping that change occur….

Stay tuned.

  • http://davidellisfilm.com DavidEllisFilm

    EMI is big enough to make  digital stores go direct.

    Most of Tunecore’s clientele are not and would be better off signing up as publishers with ASCAP or BMI.

    Don’t most venues pay for blanket licenses from the PROs?  I thought they were applying this model to the web also.

    • Anonymous

      @DavidEllisFilm

      Two responses

      First, TuneCore Artists sold over 370 million units of music in the past 26 months and generated over $250 million dollars for artists and songwriters. They are big enough.

      Second, I by no means am suggesting that a catalog get withdrawn completely from a PRO, only for select digital public performance licenses that tie into where TuneCore distributes.

      IN this model, TuneCore could do it faster with more efficiently and transparency than any PRO. And this is better for the songwriter.

      Jeff

      • http://davidellisfilm.com DavidEllisFilm

        I was referring to the artists as individuals.  I did not get from the article that TuneCore was considering jumping in.

      • http://davidellisfilm.com DavidEllisFilm

        I was referring to the artists as individuals.  I did not get from the article that TuneCore was considering jumping in.

        • Blackfence MG

          that was funny…

        • Anonymous

          @DavidEllisFilm

          My bad, Im sorry, I misunderstood your comments. I agree with you.

          Yes, I would like TuneCore to be a “voice” for this new music industry and work to get all of the artists and songwriters all of their money.

          Thus the reason we hired Jamie Purpora – formerly SVP Publishing Administration at Bug Music.

  • Frooooo

    I am a member of a PRO. I know my music has been played on the radio and in restaurants, but I have never received a penny.  The PRO’s seem to be more interested in strong-arming and suing restaurants and clubs more than actually helping songwriters/publishers.

    • Anonymous

      @froooooo

      all i can say is if you music is played publicly there must be a licensed granted to the place playing it. And you must be paid. If your PRO is not paying you, they are not doing their job.

      jeff

  • http://twitter.com/ScottMics Scott Michaels

    As much as I enjoy hearing about the exciting possibilities of this transition, I think we need to be careful not to be overzealous about cutting out the traditional middleman in all sectors of the industry. A very interesting read to say the least, but I think you may have understated the potential pitfall of this, which is one more barrier between a potential startup (or even existing companies that don’t have the clout of YouTube) coming to fruition as a contributing (and ideally profitable) member of the music discovery/consumption engine. If Google and Amazon can’t even come to terms with the barriers that currently exist, how do we know any digital retailer/streamer/whatever-the-future-may-be (besides Apple, who honestly couldn’t care less about the future of the industry and profitability for songwriters) is going to be able to afford negotiating with (possibly) thousands of entities? As a member of ASCAP, while I regret the fact that so much gets taken off the top, I trust that as a non-profit they have my interests at heart when negotiating (even though, if I recall correctly, the two big PROs have a rate set by the government). Someone needs to take over the publishing companies and turn them all non-profit.

  • http://twitter.com/ScottMics Scott Michaels

    As much as I enjoy hearing about the exciting possibilities of this transition, I think we need to be careful not to be overzealous about cutting out the traditional middleman in all sectors of the industry. A very interesting read to say the least, but I think you may have understated the potential pitfall of this, which is one more barrier between a potential startup (or even existing companies that don’t have the clout of YouTube) coming to fruition as a contributing (and ideally profitable) member of the music discovery/consumption engine. If Google and Amazon can’t even come to terms with the barriers that currently exist, how do we know any digital retailer/streamer/whatever-the-future-may-be (besides Apple, who honestly couldn’t care less about the future of the industry and profitability for songwriters) is going to be able to afford negotiating with (possibly) thousands of entities? As a member of ASCAP, while I regret the fact that so much gets taken off the top, I trust that as a non-profit they have my interests at heart when negotiating (even though, if I recall correctly, the two big PROs have a rate set by the government). Someone needs to take over the publishing companies and turn them all non-profit.

  • Derek Fiddler.

    Thanks for this piece.

    Perhaps insisting that a valid ISRC (International Standard Recording Code) be used for every song file download link would help? If one also had access to a digital download websites awstats then “clickety-click” a webwide royalty billing and payment system could be written.

  • Omarko_o

    Boy am i getting old, *!  My question is, do i have the right to be re-mixing my Karaoke songs with my voice, & is it legal, to have the original song writer’s music, played on  www.jango.com/music/omarko+o   &  can i put together an album, to sell on TuneCore?

    • Anonymous

      did you write the songs or did someone else?

      if you did, you can do what you want

      If someone else did, then you have to get a mechanical license and then pay the publisher a mechanical royalty for each “reproduction”

      If you are using someone else’s song AND using someone else’s recording of that song, they you need to to get a mechanical license and then pay the publisher a mechanical royalty for each “reproduction” AND you need to negotiate with the record label for the recording of the song to be able to use it.

      OR

      You could just re-record the song with your own vocals in which case you will just have to get a mechanical license and then pay the publisher a mechanical royalty for each “reproduction”

  • http://www.facebook.com/jazzydave Dave Owens

    Isn’t it all kind of crazy right now? It’s like the “Wild West” of the music industry…everyone sifting for gold, scrambling to figure out what’s going to happen next in a world constantly changing. With my most recent album, I started my own publishing company and record label to release it. I’m currently with ASCAP but have talked to SESAC as well…and I’m having a few radio people give me some interesting insights on PROs. I was told by a friend of mine who also performs out regularly, that he recently saw a sign stating that no Bob Dylan songs could be performed at a particular venue bc they didn’t pay SESAC (they already had ASCAP/BMI I believe). This is where everything starts getting hazy for me – what if more PROs start showing up? How will these smaller venues keep up when they’re paying BMI, ASCAP, SESAC…it also affects the locally owned and independent radio stations. The numbers keep going up which in turn limit what can be aired and performed…which leads to more closures of these indie type venues/radio stations and opens up the world to being force fed more plastic music from the wigs. The saddest part? The companies most affected by all of this are the ones who are the most loyal supporters of us musicians…

    Ok, rant over…just had to get that off my chest. I guess we’ll just have to see what sheriff roles into town next…

    http://www.daveowensmusic.com

    • Anonymous

      it is like the wild west. There is great value to the PROs, they work for the songwriter and publisher and do things no one else can.

      BUT – for the things others can do better then them (for example, getting digital public performance revenue from iTunes), the system should allow it as it gets songwriters and publishers more money

      Jeff

      • http://www.facebook.com/jazzydave Dave Owens

        “And we intend on helping that change occur….” – Looking forward to hearing about what you all come up with… 

        • Anonymous

          @dave

          its already up, live and running. In a nutshell, we hired the people and created the system to go out into the world and get your existing and future money. If you wrote a song, and it has been streamed or downloaded anywhere in the world, you are owed money. This money sits with collection agencies. If you dont get it, it gets given to Warner, Sony, EMI and Universal – they actually created a legal system that allows them to take you money. It makes me sick.

          We also go “direct” with third parties like Apple/iMatch on behalf of the songwriters that hire us eliminating a middle man from taking 12.5% of your money.

          If you are interested, email us at publishinginfo@tunecore.com

          Jeff

          • http://www.facebook.com/jazzydave Dave Owens

            Thanks Jeff, I’ll be in touch. Also, just to toss this out there…I’m using Tunecore for my current distribution. You can swing out to my site for more info as well… http://www.daveowensmusic.com

  • STORNOR94

    I HAVE MY TITLES REGISTERED WITH ASCAP. HOW WILL THE PRO KNOW IF MY SONG IS COPIED WITH JUST A TITLE? AND, HOW DO I CONTACT ONE?

  • Nancikwolf

    Hey I just got paid  a thousand dollars this quarter from BMI on my live gigs where I only played 8 gigs instead of 20 (since I was in the hospital fighting a case of whooping cough).  Yeah, I write my own songs too and I get the publishing but I’ve been out on the the road for 15 years and I just wanted to say thank you.  If everyone wants to stream their music then at least let me be as powerful (paid as well and function) as a radio station and be that much more entertaining.  DIY Baby from the start.

  • Lgl081

    Duebwa Loving will be performing at the “100 Men of Unity Celebration”, hosted by Community Advocacy Awareness Network on Sat. July 23, 2011 @ Farnsworth/Martin Luther King Park in Aurora IL. The event will run from 11am til 8pm,Come join us.

  • Tony Ray, a Tunecore member

    I’m a songwriter/publisher of my own songs, digital downloads & have an album for sale on iTunes called, “Tony Ray- Night & Day’, also have original songs on myspace where I’ve amassed over 400,000 plays but have yet to see any money. My originals also have “work registrations” as I’ve been a BMI affilliate since 1985 and my songs on myspace (http://www.myspace.com/tonyrayband) and elsewhere on the internet, yet the powers that be haven’t paid me for my songs or my publishing of them yet, though demographically the top 5 cities going to my site since I was dicovered by a talent scout in LA on May 15th,2010 are #1-Los Angeles; #2 New York City:#3- Nashville:#4- Bevery Hills:#5 Las Vegas; #6 Seattle. It has stayed this way to the present since 5-15-2010 but now Beverly Hills has just barely passed up Nashville & Seattle/Las Vegas go back & forth between #5 and #6. Ive just been patiently waiting for some one to contact me but I definitely should be getting paid. Your e-mails have helped a lot with perspective on this, so thank you Jeff, but who do I call…The FBI? I have all my copyrights & registrations. They have just refused to respond to any of my e-mail requests for over 3 years & my BMI Rep says everythings in litigation at this point so…just have to keep my day job)-: Thanks for your help Jeff & Tunecore. Aloha! Tony Ray

  • Sweetrsngs

    In addition…with work for hire where the writer retains the “writers share” when, when said companies who “own” those copyrights go direct licensing even if the writer is recouped they get no writers royalties …
    Not happy.

    • Anonymous

      @sweetrsngs

      thats a very good point

      jeff