Entertainment Industry: Yes, Please Keep Negotiating Secret Copyright Treaty To Save Our Asses

from the yeah,-that's-convincing dept

Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:

Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group

Funny... isn't it, that all these companies and industry groups are supporting a deal that no one's seen yet? Oh wait... that's because many of them have seen it and actually have had a hand in creating it. But what's really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it's a pure faith-based letter saying "if you pass this secret treaty, good things will happen." I don't know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.

Tellingly, they don't respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It's a deal to try to sneak through a system for propping up an obsolete business model by companies who don't want to adapt.

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ASCAP, BMI And SESAC Continue To Screw Over Most Songwriters: 'Write A Hit Song If You Want Money'

from the well-that's-just-great dept

We keep hearing from folks how the collections societies in the US for songwriters and composers, ASCAP, BMI and SESAC, are supposedly the "good guys" in that they actually give money to the actual musicians, and they aren't like the RIAA at all. But the evidence continues to be lacking on that front. In fact, it increasingly looks like they're doing a lot more harm to most musicians. Earlier this year, we noted that their aggressiveness in getting just about any small venue to pay up fees was killing off open mic nights and other sorts of venues that allowed musicians to play live. Mike points us to the news that many venues are simply giving up on live music. The problem? Well, ASCAP, BMI and SESAC are all demanding huge fees. Even the restaurants that don't bring in cover bands are being told they need to pay up, just in case a musician happens to do a cover in the middle of a wholly original set. The licensing organizations don't seem to care, they just want you to pay, just in case. When asked how they know that covered music is being played, they admit they don't:

"Basically, we don't know," said Dave Ascher, the SESAC Music Licensing Consultant who sent the letters. "To make a long story short, there's no way, logistically, for us to know whether on a day-to-day basis they're playing SESAC music."

But, just in case, you need to pay up. Of course, rather than doing that, the venues are just giving up on live music, providing fewer places for musicians to perform, hone their craft, and build up a following (and a business model).

As for the claim that these organizations help bring in money for those musicians, well, that's not seen either. We've already seen how they only give money to big name artists in most cases, because that's all they're able to track. In fact, the article talks to one musician who's upset about all the venues closing, but is still registering his songs with ASCAP. When asked if he's received any royalty check at all, the answer was no. So, how do the collections organizations respond? They tell them to become more famous:

"I'm sorry to hear that, but what I would like to tell him is that he needs to write a hit song," BMI's Bailey said.

How nice. They funnel all the money to big name artists, force venues to close so new artists can't become famous, and then when asked about giving money to those up-and-coming artists, they flippantly tell them to become more famous.

At some point, musicians and songwriters need to learn that these organizations are not doing things in their best interests at all. They're simply bureaucracies to funnel money to big names, while limiting the competition.

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TV Broadcasters Suing Songwriters' Org SESAC Over Pricing Power

from the tug-o'-war dept

Missed this one when it first came out, but Copycense points us to the news that TV broadcasters have sued SESAC, one of the collections agencies for songwriters and composers (the smallest, after ASCAP and BMI), claiming that SESAC is violating antitrust laws in how it prices music used in television shows -- especially for syndicated shows. The details are really quite fascinating. Local stations quite often run syndicated shows (such as sitcom reruns). When they buy the rights to run those syndicated shows, the package includes all of the related copyrights except for performance rights for any of the music included. Those have to be purchased separately by the broadcasters themselves. Now, for SESAC, representing the songwriters, this presents a golden opportunity. It's the only thing standing between the broadcaster and being able to show the syndicated shows -- and thus, it can ask for extremely high prices, or -- more commonly -- pressure the broadcasters into a high-priced "blanket license." Since the broadcasters can't change out the music (it's in the shows already), they generally have no choice but to go along. So, the argument goes, SESAC effectively has a monopoly position, and is abusing it.

Of course, the real "monopoly" here is copyright. At a quick glance, it certainly looks like SESAC is doing exactly what copyright allows -- but the structure of licensing for syndicated TV content allows SESAC to make life difficult for the broadcasters. So, I'm not really sure SESAC should really be faulted here, as it seems to be doing exactly what it was enabled to do thanks to overly broad copyright laws. At the same time, it also makes you wonder why the broadcasters don't go back to the TV program owners themselves and demand that they bundle the music performance rights as well, since there's more negotiating power there. So, while it does seem unfair for the broadcasters as the market is currently structured, I'm not sure it's an antitrust violation on SESAC's part. More a problem with how the industry licenses are set up, combined with copyright being way too broad in such situations.

There's also a separate interesting element to this lawsuit -- which is why it's SESAC being sued rather than ASCAP and BMI. ASCAP and BMI are both already limited due to previous antitrust fights and consent decrees against them, whereas SESAC has been more or less free to act this way. Either way, it's yet another lawsuit concerning aggressive use of copyright to try to demand as much money as possible, even for music that is a small part of an overall presentation of content.

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Sorry ASCAP, A Ringtone Is Not A Public Performance

from the nice-try-though dept

ASCAP and BMI have been pushing all sorts of ridiculous claims over the past few months, trying to squeeze extra money out of pretty much everything, rather than actually doing right by those they represent and helping them adapt new business models based on giving people a reason to buy. Beyond claiming that Congress should make sure their royalties never decrease, they've also been saying they deserve money for things like YouTube embeds (even though YouTube already pays them for that same traffic) and the 30 second previews on iTunes and other music stores. However, the most ridiculous of all was trying to claim that ringtones are a public performance, and thus mobile phone providers need to pay ASCAP/BMI. The thing is, ASCAP and BMI already get paid for ringtone purchases -- but this was an attempt to get a second payment on top of that for the fact that people might hear the ringtones.

Thankfully (as a whole bunch of you have sent in), a judge wasted little time totally rejecting that reasoning. The court pointed out that the Copyright Act is pretty clear that there's no royalty needed for any sort of "performance" that isn't done for commercial advantage and "customers do not play ringtones with any expectation of profit." It's a pretty complete rejection of an obvious stretch by ASCAP.

We might hope that ASCAP will take this and begin to recognize that the best way to serve songwriters is helping them embrace new business models, but we expect that instead they'll keep looking to squeeze more money and double dip from other providers... while continuing to pay industry insiders to smear those who want to protect consumer rights.

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As If Performance Royalty Threat Wasn't Enough, ASCAP, BMI Want To Increase Radio Royalties

from the squeeze-squeeze-squeeze dept

While the RIAA keeps pushing and pushing for a performance tax for radio stations, it looks like ASCAP and BMI on the songwriter/composer side are apparently now looking to increase their existing tax on stations (via Michael Scott). As you probably know, right now, stations do pay royalties to ASCAP and BMI for the "performance right" on music they play on the radio, which gets distributed to the composers and songwriters. But performers don't get a royalty, as Congress recognized (correctly) that radio was free advertising for musicians. So, the first battle is about adding another tax, but this newer battle would be about increasing the existing one.

Again, this shouldn't be a surprise. As we've been detailing lately, ASCAP, BMI and other similar groups around the world have gone on something of a rampage lately, trying to get larger and larger fees from just about any use of music -- including ringtones, the 30-second previews on iTunes, and YouTube videos embedded in blogs (despite the fact that YouTube already pays a fee). Sucks to be a terrestrial radio station these days. Not only do you have a ton of new competition from other sources, but the rest of the industry is looking to tax you until you're gone.

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ASCAP, BMI Demanding Payment For 30 Second Previews At Web Stores

from the are-they-insane? dept

It's been really stunning to see just how little dignity groups like ASCAP and BMI have in trying to suck every last penny out of any kind of musical usage, without ever once considering the damage they're actually doing to songwriters. It's as if the folks who run these groups have no concept of the actual impact of their crazy demands. In just the last few months, we've seen them try to squeeze more money out of music video games -- apparently not comprehending how much those games help promote musicians and sell more product. Then there was the fancy trick, where they claimed that websites that embedded music videos from YouTube had to pay even though they were already getting paid by YouTube directly. They just wanted to get paid twice. And remember back in the summer when they claimed that the ringtone playing on your phone required a public performance license on top of the royalties already paid? They have no shame.

So, I guess it should come as no surprise at all to find out that their latest target is the 30 second previews that you hear on iTunes or Amazon.com. Yes, they're claiming that those 30 second previews should count as a public performance, and they want to get paid. Now. And they're asking Congress to make it happen -- because, as we've been learning recently, if you're inept at running an actual business, just go to the federal gov't and ask them to bail you out.

Rick Carnes, the head of the Songwriters Guild of America -- and who, we've been reliably informed, is a big fan of this site (that's sarcasm) after our previous articles debunking some of his more absurd claims -- explains the situation:

"Yesterday, I received a check for 2 cents. I'm not kidding. People think we're making a fortune off the Web, but it's a tiny amount. We need multiple revenue streams or this isn't going to work."

Talk about entitlement culture. Because Rick Carnes is unable to structure a smart business model, and thus makes pennies, everyone else needs to just cough up and pay? Yeah... that's reasonable. How about rather than trying to squeeze every penny out of everyone else (and then funnel it to the top artists instead of the smaller artists, anyway), you spend some time actually understanding basic business models -- such as ones where you convince someone that something's worth paying for, rather than just demanding Congress give you a cut of everything, in a way that harms the very musicians you claim to represent?

And, of course, as the article above notes, it's a flat-out lie that songwriters aren't getting paid for a lot of this stuff:

"These guys are afraid that the business model is shifting away from public performances to a model of private performances," [David] Potter [from the Digital Media Association (DiMA)] said. "This is a turf battle. They are saying, 'The songwriters aren't getting paid.' Baloney. Songwriters are getting paid. They're paid sync rights and (mechanical) rights. They aren't getting paid for the public performance in a download because there is no public performance in a download."

This is a pure money grab by people who don't want to come up with a business model demanding free cash from those who did come up with a better business model. They're blaming everyone else for their own unwillingness to adapt.

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How Performing Rights Groups Funnel Money To Top Acts And Ignore Smaller Acts

from the nice-trick dept

It's no secret that most of the traditional "recording industry" really is structured almost entirely to help the big name acts, but whenever we write about the collections organizations like ASCAP and BMI we get angry people sending in emails and comments insisting that it's unfair to lump those two in with the RIAA, since they're really out to help the actual musicians, even the small guys. Uh huh. Of course, we've already shown how ASCAP and BMI and their overly aggressive attempts to collect royalties from just about everywhere actually have been known to harm up-and-coming singers, such as by destroying the ability for many venues to host open mic nights. ASCAP has been particularly aggressive lately in making bizarre claims about how embedding YouTube videos requires a license (despite the fact YouTube already pays ASCAP -- so it wants to double count) and how ringtones represent a public performance. These are pure money grabs that make it that much more difficult for anyone to help promote up-and-coming musicians and songwriters. Is it any wonder, in the meantime, that the organization is spending time setting up efforts to try to push back against people who support open culture and content sharing? It apparently would prefer that the songwriters they "represent" not know about these efforts that actually do quite a bit to harm the vast majority of songwriters out there.

But, back to the original point. ASCAP, BMI and their supporters insist that they're not as bad as the big, mean RIAA, and that they're especially focused on providing important royalties to less well known artists. Except... even that may be questionable, at least when it comes to live performance royalties (admittedly, a smaller segment of overall royalties). Reader btr1701 sent in some email exchanges from a mailing list, which I won't share directly since I don't have approval, concerning a jazz musician trying to find out why she doesn't receive any live performance royalties, despite knowing that these organizations collect them, supposedly on her behalf. In response, she's told that ASCAP and BMI only distribute that royalty money to "the top 200 grossing US tours of the year." If you're smaller than that? Too bad. Except... they do have one minor exception. If you play "serious music" (no joke), then they'll pay you your royalties. So, the musician asks what is "serious music" and is told it's "generally considered to be classical music."

The musician tried re-registering her own (jazz) compositions as "serious music" but it "does not appear to have made any difference whatsoever" and she notes that she is "yet to receive a single penny... for any US performance or radio broadcast of any kind" despite the fact that her music has been performed in the US for almost ten years, and "the vast majority of performances of my music take place in the US."

I went looking for some more details, and it appears that, indeed, ASCAP and BMI have a policy in place to only provide performance royalties to the top 200 grossing tours in the US. If you're a "smaller" act, the only way to get paid is to be an opening act on such a tour. Otherwise? Too bad, you're on your own. Aren't you glad you signed with ASCAP or BMI? Update Good clarifications in the comments on this. Despite what the musician was told originally, it appears that it's not that ASCAP and BMI only pay the top 200 tours, but that they only monitor them (it's not explained how they know ahead of time which are the top 200) in order to figure out who to pay. The end result, of course, is functionally quite similar. If they're only monitoring the top 200 grossing tours, then the likelihood of them finding out about songs from less well known composers is close to nil. But those big names? They get more than their fair share.

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Connecticut Town Tells ASCAP, BMI, SESAC To Get Lost Over Royalty Bills

from the get-lost! dept

Three years ago, the town of New Milford, Connecticut got a bill from ASCAP demanding $280 in licensing fees, because the local town center sometimes will have music playing. Even at that amount, the mayor felt it was ridiculous, since it was a municipality playing music for non-profit community purposes. So the town council voted to ignore the bill, tabling it "indefinitely." As far as I know nothing else has happened between ASCAP and New Milford, but reader Bill Waggoner recently alerted us to the news that BMI and SESAC -- the other two collection societies in the US -- sent bills to New Milford as well. BMI's was a whopping $3,000. SESAC's was $1,500.

After being asked about it, BMI realized that it had made a "mistake" in calculating the bill, and lowered it to $305 (funny that they don't make mistakes in the other direction, do they?). However, the town council has told them to go take a hike. "They're not going to get that either" was the quote from council member Roger Szendy. The town's mayor, Patricia Murphy, says she's standing up for the principle of the whole thing, claiming that it's silly that a municipality should have to pay. BMI apparently says it's not going to sue, but it hopes that the city will "do the right thing."

I'm guessing that BMI (and ASCAP) realize it would be a public relations nightmare to sue a municipality, but if other cities start taking similar principled stands, you have to wonder if they'd reconsider.

Side Note: As regular readers know, it's our common practice to link to our source for information on stories. In this case, however, our main source is The News Times. I had the story about this open in my browser for a few days before getting around to writing it up. Then I discovered that The News Times locks up its content after a few days. So... I can no longer actually get to the article or send any traffic to the newspaper site. Perhaps I don't quite get the economics of news publishing, but I would imagine ad traffic from a bunch of our readers visiting their site would greatly outweigh the expected value of people actually paying $3 to read the article (yes, that's what they want). Oh well. I guess it's just their loss.

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How ASCAP And BMI Are Harming Up-And-Coming Singers

from the shakedown dept

When we talk about problems with copyright and royalty systems, sometimes people suggest that we should make an exception for the collections societies like ASCAP, BMI and SESAC that get performance royalties for songwriters, saying that since the money goes to the songwriters, rather than the labels, it's okay. However, ASCAP and the others cause significant problems. We've already discussed how they create problems, and how their views are outdated and damaging for songwriters.

However, it keeps getting worse, as they get more and more desperate to collect money -- and they're doing so in a way that harms songwriters much more than helps them.

ASCAP and BMI have been aggressively targeting venues that hold open mic nights, and demanding they pay huge fees. Many venues have given up and simply stopped allowing any musicians to play at all. In fact, one made every musician sign a waiver that they would only play original songs, and ASCAP told him it didn't matter because there was no way to know if the singers were really avoiding copyrighted music, so he still needed to pay up for a license. Those that pay up then often feel they need to charge a cover fee, so attendance dwindles.

It's basically making it more difficult for the next generation of musicians to get started, and ASCAP is so blind to this they don't even know what they're talking about. In response to the article, an ASCAP representative claims:

"What gives anyone the right to use someone else's property, even though they're not making money on it? I can guarantee you the phone company's going to charge you whether you're making money or not."

First off, this shows an ignorance of what is and is not "property." It also shows no concept of the larger picture of how using copyright to limit singers from appearing is harming artists. As for the non sequitur about the phone company... it's not clear what that has to do with anything.

It's time for musicians to start realizing that these societies do not have the songwriters' best interests in mind.

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