Tag: PRO

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Copyright

The AM-FM Bill and the Status of Terrestrial Music Broadcast Performance Rights

The following post comes from David Ward, a rising 2L at Scalia Law who is working as a Research Assistant this summer at CPIP.

U.S. Capitol buildingBy David Ward

This past Wednesday, the Senate Intellectual Property Subcommittee, led by its Chairman, Senator Thom Tillis (R-NC), held a virtual online briefing on the current state of music rights. Specifically, members of the music and broadcast industry debated a bill called the Ask Musicians for Music Act (AM-FM Act), which would create new terrestrial broadcast performance royalties for sound recordings. Some of the biggest names in the music and broadcast industry were invited to testify, including: Harvey Mason Jr., CEO of the Recording Academy; Curtis LeGeyt, COO of the National Association of Broadcasters (NAB); Dr. Richard Burgess, CEO of the American Association of Independent Music (A2IM); Scott Hunter, Executive Director of the National Religious Broadcasters Music License Committee (NRBMLC); and Colin Rushing, Chief Legal Officer of SoundExchange. These panelists represented both musicians and broadcasters, big and small, who have been engaged in a sometimes-tense dialogue about the future of terrestrial broadcasting rights.

For a bit of background, all music we hear on the radio has two copyrights: a copyright for the musical work (lyrics, notes, melodies, chords that an artist writes), and a copyright for the sound recording itself (that a producer or sound engineer usually helps create). The scope of the discussion here is about performance royalties for the sound recording, not the musical work. It should be noted, however, that radio stations still need licenses to play musical works over the air. These are usually obtained in the form of blanket licenses from performance rights organizations (PROs) such as ASCAP or BMI. Blanket licenses allow radio stations to broadcast musical works from the PRO’s repertoire, within the scope of their agreement.

Under the current system, though, radio stations are not required to pay a per-performance royalty when they broadcast a sound recording over a terrestrial broadcast, such as AM or FM radio. However, stations that broadcast over the internet, or any other entity that broadcasts performances digitally (such as a webcast), are required to pay digital performance royalties for the sound recordings they play. This being the 100th anniversary of broadcast radio, the AM-FM Act currently being debated aims to end this exemption that radio broadcasters have enjoyed for exactly 100 years.

Curtis LeGeyt from the NAB and Scott Hunter from the NRBMLC represented the interests of broadcasters who have long opposed the introduction of such a royalty on their expense reports. Mr. Hunter testified that a terrestrial sound recording performance royalty is “unwarranted” and “unnecessary,” and that Congress has repeatedly declined to create such a right even as recently as 2018. In 2018, Congress passed the Music Modernization Act, which made major reforms to music copyrights, including extensive reforms of how royalties are set and split for both musical work and sound recording copyrights. Mr. LeGeyt argued that Congress could have created a terrestrial performance royalty for recordings then, but did not. He further argued that copyrights are statutory devices intended to promote the creation and distribution of works, and that allowing radio to freely broadcast sound recordings best serves the purposes of copyright law.

Both Mr. LeGeyt and Mr. Hunter characterized the exemption as a mutually beneficial promotional tool for performers and broadcasters. They warned of a decline in local radio programming and further financial instability of the industry if new royalties were mandated. Noting the financial instability caused by the coronavirus pandemic, they argued this could be fatal to many local radio stations in the short term as well as disrupt radio business models in the long term.

On the other side of the issue were Harvey Mason Jr. from the Recording Academy, Dr. Richard Burgess from A2IM, and Colin Rushing from SoundExchange. Mr. Mason began his testimony by contrasting our current system with the rest of the world’s; namely, most other major countries have sound recording performance royalties for terrestrial broadcasters. Musicians are some of the hardest hit in the economy during the pandemic, and despite this, Mr. Mason testified, they are still playing free online shows for the benefit of others. This situation underscored the need to do away with the outdated exemption from paying sound recording performance royalties enjoyed by terrestrial broadcasters. Mr. Mason suggested that the AM-FM bill could be included in a new coronavirus relief package, so musicians can recoup some of the losses they have recently experienced.

Dr. Burgess of A2IM echoed these sentiments, adding that musicians are the only copyright owners that are not allowed to profit from the performance of their works over terrestrial broadcasts. In Dr. Burgess’ view, musicians are being forced to subsidize the radio industry even though their own revenues have been decimated.

Colin Rushing of SoundExchange, the company that collects digital performance royalties for sound recordings suggested there are few, if any, major differences between digital and terrestrial broadcasts in the modern age. Most broadcasters are simulcasting online, which already requires them to pay digital (but not terrestrial) performance fees. Many apps and devices also seamlessly transition between digital and terrestrial broadcasts. He testified that the lack of terrestrial performance rights creates a loophole that distorts the market and creates an incentive to invest in old technologies, making it harder for new platforms to compete. Echoing many of his colleagues’ sentiments, he also reiterated that the U.S. is an outlier on this issue and that this harms music creators who are generating value for broadcasters, now more than ever.

Questioning by Senate offices drew out the sharpest differences in positions. Mr. LeGeyt of the NAB and Dr. Burgess of A2IM engaged in a (sometimes terse) dialogue. Mr. LeGeyt painted a picture of mom and pop broadcasters forced to consolidate operations and lay off workers, even before the pandemic, while Dr. Burgess was not persuaded that struggling musicians should therefore be forced to take promotion and exposure as the only consideration for radio plays.

Senator Coons’ office (D-DE) began the staff questioning with something that was likely on everyone’s mind: what level of royalties are at issue. Being the expert in performance royalties, Mr. Rushing from SoundExchange chimed in with a short “we’re not sure” answer. In his mind, and even in the minds of the broadcasters, it would be impossible to speculate. Either the free market would dictate the rates, or some other rate-setting entity would set the rate based on the current market rates. Since the current market rate is zero in the U.S., defining any number would be speculation. However, Mr. LeGeyt was quick to draw a comparison to the royalties they already pay for digital performances, and that they already inhibit the growth of mid- and small-sized broadcasters.

The costs incurred by mid- and small-sized broadcasters was another topic that came up frequently in responses. Mr. Mason of the Recording Academy made a point to share that the proposal would put a cap of $1.50 per day on terrestrial performance royalties for true small and local radio stations. Mr. Rushing of SoundExchange added to this, stating that even most larger radio stations would likely be paying less than $500 per year. The broadcasting representatives again pointed out the already constrained budgets of many stations and that any increase in costs would hurt the industry.

Perhaps the most contentious issue was the purpose of terrestrial radio in the music ecosystem, and the role of “promotion” in that ecosystem. Broadcasters argued that terrestrial radio is and always has been a public service. It provides weather, news, and other important public service announcements for free while also promoting musicians’ work. Therefore, broadcasters should not have to pay performance royalties, as they have not for a century. Music industry representatives, however, argued that providing a public service does not warrant profiting off others’ work for free.

Senator Tillis’ office asked the question that got to the heart of the “promotion” issue: whether radio mainly plays music that is already popular and does not need promotion, or whether sound recordings become popular because they are promoted on the radio. Mr. Rushing of SoundExchange offered his view that it is a bit of both. He and his colleagues did not contest that many artists benefit from the promotion and exposure of broadcast radio plays, but not all of them do. In their opinions, the free market should decide what the rates should be for sound recording performance royalties so that any artists who want to provide their product for free in exchange for promotion and exposure would be able to make that choice. The broadcasters argued that broadcast radio is different than other forms of media, and that the value of promotion has been time-tested.

Although all participants committed to continue good faith discussions on the matter, it does not bode well for a quick agreement that the radio sound recording royalty exemption has already reached its century mark.

Categories
Copyright Copyright Licensing

SONA and Songwriters Fight DOJ’s Misguided 100% Licensing Rule

Things are heating up in the lawsuit filed by Songwriters of North America and three of its members (SONA) challenging the new gloss of the Department of Justice (DOJ) on the 75-year-old consent decrees that govern the licensing practices of ASCAP and BMI, the two largest performance rights organizations (PROs). SONA sued the DOJ on September 13, 2016, questioning the DOJ’s reinterpretation of the consent decrees to require the PROs to license all of the works in their repertories on a 100% basis. As reported by Billboard yesterday, CPIP Senior Scholar & Director, Copyright Research and Policy Sandra Aistars is assisting SONA’s legal team at Gerard Fox Law PC in the litigation.

After completing a two-year review of the ASCAP and BMI consent decrees, the DOJ issued a statement on August 4, 2016, concluding that the decrees require the two PROs to offer only “full-work licenses.” On this view, the PROs would not be able to continue licensing the fractional interests in the musical compositions owned by the songwriters they represent. As the U.S. Copyright Office noted in early-2016, such fractional licensing is a “longstanding practice of the music industry.” Nevertheless, the DOJ claimed that the change “should not meaningfully disrupt the status quo in the licensing of public performance rights.”

This assertion was immediately challenged by the PROs. ASCAP President Paul Williams issued a statement that same day vowing to work with BMI “to overturn the DOJ’s decision” in both Congress and the courts. BMI filed a letter with District Judge Louis L. Stanton, who oversees BMI’s consent decree, announcing its intention to seek a declaration that the decree “does not require 100% licensing.” Six weeks later, Judge Stanton issued an opinion declaring that BMI’s consent decree “neither bars fractional licensing nor requires full-work licensing.” The victory was celebrated as a win for songwriters, and both ASCAP and BMI issued statements praising the decision. The DOJ has since appealed the issue to the Second Circuit.

In its complaint filed in the District of Columbia, SONA argues that the DOJ’s 100% licensing rule violates songwriters’ due process rights, both substantive and procedural, under the Fifth Amendment as well as the Administrative Procedures Act. Calling the DOJ’s rule “a dramatic departure from the status quo,” SONA points out that it will “limit and undermine the creative and economic activities” of songwriters by forcing them to “undertake the burdensome and potentially costly process of revisiting and amending their core business practices, private contracts, and collaborative relationships” in order to comply.

Arguing that the case should be dismissed, the DOJ challenges the standing of SONA to even invoke the court’s jurisdiction. The DOJ claims that any harm caused by the consent decrees is too speculative and remote to create an actual case or controversy, and it suggests that no songwriters have been deprived of any protected liberty or property interest under the Due Process Clause. In its opposition brief filed this past Tuesday, SONA strongly opposes that contention:

[P]laintiffs have alleged and will prove at trial that [the DOJ’s] new rule has caused immediate injuries and will cause imminent injuries to each plaintiff, thus establishing standing. Plaintiffs have also pleaded facts sufficient to show that the government’s action is interfering with their freedom to contract, freedom of association, and freedom of speech, and that the government has taken their valuable intellectual-property rights without compensation, thus violating plaintiffs’ substantive and procedural due-process rights.

Admonishing the DOJ’s “casual disregard for the welfare and livelihoods of America’s songwriters,” SONA points out that, under the DOJ’s new rule, songwriters will:

  • Be deprived of the ability to choose the PRO that will license their shares of coauthored works;
  • Be required to withdraw works from representation by ASCAP or BMI;
  • Have songs that they must license outside of the PRO system;
  • Need to cede administrative control over their copyrights, including the right to collect royalties, to unaffiliated third parties;
  • Be compelled to renegotiate existing contractual relationships on a song-by-song basis;
  • Be forced to consider whether they should decline to collaborate with creators who are not members of the same PRO; and
  • Have reason to consider withdrawing from ASCAP or BMI altogether.

    • Now that President Trump is in office, there is new leadership at the DOJ. Jeff Sessions was sworn in as the U.S. Attorney General earlier today, and Brent Snyder took over as acting director of the DOJ’s Antitrust Division less than three weeks ago. Just last week, the DOJ asked the Second Circuit for an extra 90 days to file its opening brief in its appeal of Judge Stanton’s ruling that the BMI consent decree does not require 100% licensing. According to the DOJ, the “requested extension is necessary to allow new leadership in the Department of Justice adequate time to familiarize themselves with the issues.” Perhaps there is hope that the DOJ will discontinue its misguided push for a 100% licensing rule that will inevitably threaten the livelihoods of songwriters.