By George Howard
Last week we posted a music publishing pop quiz. There was a hypothetical followed by 5 questions, and today I will reveal the answer to the first question. The hypothetical is below as a refresher, followed by the question and answer.
A Jazz artist performs her own composition in a club in the United States. In the middle of the song, the guitar player plays a solo. As part of his solo he quotes a fifteen second snippet of The Flintstones theme song.
And the question was…
1. Who gets paid for this live performance in the club, and how?
Here’s the answer:
The exclusive right of public performance is one of the six exclusive rights granted to copyright holders the moment they “fix” (meaning write down or record) an original work of authorship in a tangible medium. As you would expect from its name, “public performance” means playing the song live in a public place (like a club). However, the exclusive right to play the song live in a venue is only one element of the right of public performance. Public performance also includes, for instance, radio play, music played as part of a tv show, ad, or movie, and music played online (streamed, for example, from a website).
What all this means is that the writer of the song (and/or the publisher—and if you’re the writer and you haven’t assigned any of your rights to a publisher, you are your own publisher), and only the writer has the exclusive right to do all the things listed above: play his or her song in a venue, have it played on radio, etc.
If anyone does any of these things without the permission of the writer/publisher they are infringing on the exclusive right of the copyright holder, and the copyright holder can sue for damages.
So, you logically ask at this point, how can people get away with, for instance, covering songs in a club? The answer is that there are organizations that act as clearinghouse agencies by granting the rights of public performance to places that desire to use copyrighted materials on behalf of the songwriters who affiliate with the organizations; in the U.S. there are three of these clearing house agencies: ASCAP, BMI, and SESAC.
All three do the same thing: issue licenses to places like venues, radio stations, TV networks, bookstores, websites, and any other entities who publicly perform copyrighted music. These licenses give these entities the right to publicly perform any song by a writer who is affiliated with the PRO. The PROs collect these fees, cover their expenses, and then distribute the collected money out to their affiliated writers.
In our hypothetical above, therefore, the jazz artist performing her own composition is the writer, and she is publicly performing her work. Therefore, she is owed a percentage (however small) of the money collected by her PRO (assuming she affiliated with a PRO) from the venue that granted the venue the right to publicly perform any music from the writers affiliated with that PRO.
Similarly, the writer/publisher of the Flintstones theme song that the guitar player quoted in the solo section is owed a percentage (however small) of the money collected by the writer of the Flintsones theme song from the venue.
Certainly, it’s far from an exact science, and it’s not like either the jazz artist or the writer of the Flintstones is going to get a check the next day from their PRO listing the fact that the money is for the performance at the club.
The PROs use sampling (ie going into clubs and noting what is being played), monitoring (tracking what songs are being played on radio, for instance, via playlists required to be submitted by stations), and extrapolation (if a song is a hit on radio, it stands to reason that there will be more people covering it in clubs) in order to come up with a formula for what a writer is owed when his/her song is publicly performed.
The bottom line is that in answer to question one above, the writer of the jazz song and the writer of the Flintstones theme songs both should be paid a public performance royalty from the club. The royalty will be a fractional percentage of the blanket license fee the club paid to the PROs (ASCAP, BMI, SESAC) in exchange for the rights to publicly perform any song in the PROs’ catalogs.
Check back Wednesday, August 8th for the answer to question 2:
2. Someone from the artist’s label records the live performance that took place in the club, with the intent of releasing the song as a download from iTunes. What must be done to do this, and, when released, who gets paid and by whom?
George Howard is the Executive Vice President of Wolfgang’s Vault. Wolfgang’s Vault is the parent company of Concert Vault, Paste Magazine, and Daytrotter. Mr. Howard is an Associate Professor of Management at Berklee College of Music