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(or, the funny letters after the music publisher's name on CD jackets)

So you want to write songs? Cool. Then, you're playing the song in a coffee-house somewhere in South Nowhere, Oklahoma. The audience gives you a standing ovation for your lovely melding of catchy music and lyrics. In the crowd you spot a guy with a MiniDisc recorder and a really cool looking stereo microphone. You're flattered that someone's so taken by your inimitable style and great sound that they've taken the time to record your work and your playing. At the break between sets, you approach this fellow and give him your card and ask humbly if he could give you a copy of the recording. Who knows, perhaps the sound quality is good enough to use on your demo disc.

Speed up about a year from that time. You're still being paid $25 a night in the coffee shop, plus a few bucks put in your guitar case (and a free burger and maybe a beer if the manager's happy with the number of people who show up and buy booze). You're driving home from the gig and suddenly you hear something awfully familiar on the radio. Really, really familiar. It's your song! However, this version is being performed by a famous gang of pop musicians and it's a cut from their latest CD!

At first, you burst with pride. Then, you enter your humble abode, shoo away the cockroaches from the kitchen table, and sit down for yet another toaster-oven pizza and a Coke. And you know that the famous gang of pop musicians are millionaires many times over, so why, then, didn't they at least mention your name on the paper inside the jewel case of their latest CD? Why aren't you getting your just desserts? Why aren't they at least sending you the $842.95 you need for a new PA amplifier and a good microphone, so you can sound better and get more gigs?

What happened?

You didn't have a manager. You didn't copyright your song. You didn't have a music publisher. And you didn't use the services of a performance rights licensing organization.

ASCAP, BMI and SESAC are the three, the only three, music licensing organizations in the United States. (Three, only, you ask? And the Justice Department sued IBM for monopolizing the computer industry when there were myriad players in the mainframe game? IBM won. But I digress.) What they do is this: they take the printed copy of your sheet music from your publisher, and list it within their repertoire. Supposedly, each and every time your song is adapted by another artist, or better yet, played from your own CD on the air, on TV, on the cable or satellite music service, or in a restaurant, night club, or other public venue, or even a jukebox, your account with the organization you choose to license your work is credited with a small sum of money.

In a perfect world, this would work out delightfully, and each and every composer would be justly compensated for his/her contribution to the music in the air via monthly royalty checks from ASCAP, BMI or SESAC (whichever organization you chose to handle your music).

What happens in real life is this. The music licensing organizations pay organizations like Nielsen media measurement (owners of Billboard Magazine) and other market research groups to determine (a) how often your record is played on broadcast media and (b) how many of your CDs are being sold (and nowadays, how many downloads of your songs are being purchased). ASCAP used to actually record thousands of hours of play-time; while BMI did their research by attempting to compel radio stations to forward to them copies of their playlists. Not very accurate.

Michael Jackson's album Thriller sold more copies than any album in the history of recorded music. Nearly each and every cut was being repeatedly played on the radio. Something like one out of four households in America eventually bought the work on vinyl or CD. The stuff's still being played on the satellite music service and cable music service "80's" channels. So therefore, Michael should've made a lot of money in royalties. And he did. And he will.

Okay, so I have a manager, I've copyrighted my music and paid BMI to license my music, now what?

Now, let's say that your CD has sold 250 copies at your appearances and via your website. You've also given away about 50 additional copies to radio stations and music reviewers. The radio stations have played the song 1,000 times in the last four years. at about nine cents per play, that's $90.00. The coffee shop plays your record at least once a day (it's in shuffle mode in their 100-disc CD player). So that's nine cents a day for the four years: $130.32. Your record royalties are $220.32! Why, then, after four years does BMI send you a check for exactly $18.25?

That's because the ways that they determine the number of times a song is played is far from an exact science. Opponents of the preferential system of music licensing used by what, for brevity's sake, we'll hereinafter call "The Big Three," are many. But they seem to exist in a legal never-never land, occasionally flexing their legal muscles against copyright infringers - and making sure that plenty of press is generated when such an infringer is sued for misuse of one of their artists' cherished musical masterpieces, and loses.

The Big Three's websites do their best to show off the cadre of stars who've become enriched beyond their wildest dreams because they've chosen to utilize their services. ("And you, too, talented musician that you are can share a piece of our especially fat revenues with every song you license with us!")

So where does the money come from?

The largest single portion of licensing fees earned by ASCAP, BMI and SESAC come from use of popular music on television, because of its sheer ability to reach people. Radio's number two, with about 30%. "Public performance rights" (your music playing in the coffee shop, jukeboxes, and ambient music systems like Muzak) make up most of the rest. The data's fuzzy about how much is made by payments from websites that download music and satellite radio. ASCAP alone doles out in excess of $400 million dollars annually to those artists it represents.

Popular genres like pop, R&B and rock and roll are scrutinized far more carefully by the music licensing organizations than are "obscure" genres like jazz, speed-metal, trance, emo, or whatever. Therefore, essentially the rich get rich and the poor get poorer. Really.

TV stations and radio stations in major markets spend plenty of time negotiating (with the aid of high-powered lawyers) the fees to be paid to The Big Three. Then the Big Three doles out the money. Radio pays according to the estimated number of people reached by the station (determined by market research). Jukebox owners automatically pay the fees to The Big Three when they pay the monthly rent owed to the owner of the jukebox (if it's owned by an individual, and not rented, that individual must pay a modest annual "jukebox licensing fee.")

Night clubs, restaurants, and bars pay according to a) how many souls can be accommodated in the venue (1 per 10 square feet); b) how many nights feature music; and c) how many musicians are used for each live performance. It doesn't matter a whit how many people actually show up to listen! The writer of this article currently pays in excess of $5,000 annually to BMI and ASCAP combined. If my talent earned me peanuts; I'd still pay the five grand. Thankfully, even after the dues for public performance, the extra liability insurance cost, disastrous results because of bad weather, and a fickle public (who're being extra-picky about where they spend their money because they're scared about the economy and up to their eyeballs in credit card debt) I still manage to turn a profit in a competitive marketplace. A small profit, but a profit nonetheless. (An aside; ASCAP's pretty nice; we get "benefits" from ASCAP membership like low-interest credit cards, low-cost health insurance and the likes. And really official looking membership cards (which, along with a token, will get one on the NYC subway).)

What about SESAC?

For years, SESAC's repertoire (the music they license) consisted exclusively of the vast churnings of the Country and Western music machine in Nashville, Tennessee. Then someone got the bright idea to purchase a minuscule amount of tunes from each other genre (rap, hip-hop, jazz, pop, folk, R&B, rock) so that they could:

  • Send letters to all of the public performance venues telling them that they're in violation of copyright law by not paying royalties to them, regardless whether or not any of SESAC's limited non-Country and Western repertoire is played there.
  • Send threatening letters from lawyers to venues that don't roll over and pay up.
  • Send out "field agents" to venues who return the letters from SESAC's lawyers with "fuck you" or something similar written thereon. I didn't tell them to go fuck themselves, I just asked them to send me a complete, updated list of their material each year and make it a point not to play a single bit of it nor allow my performers to do so.

It has been described by many, particularly owners of small venues who feature neighborhood bands and are total innocents to the music business, as similar or equal to mafia strong-arm tactics. Any business owner can ask a SESAC representative to leave the premises; all they do is return in the company of a Sheriff or State Marshall bearing a summons to court. They rarely, however, do this because to litigate all of these cases would put a serious dent in their revenues. Certainly much more than it costs them to send out the lowly field agents. I guess you can tell by now that SESAC is not among my favorite organizations.

So that's it in a nutshell. It's absolutely ridiculous to some (but not the fat cats who're raking in the dough). And it's patently not fair, particularly to obscure or non-mainstream genres. But after myriad options for fairly cutting up the dues have been batted around, the song always remains the same. The myriad little guys get screwed and the big money goes to a small percentage of the artists; the ultra-famous ones.


UPDATES: What do I do if I'm an artist and don't want to use ASCAP, BMI or SESAC to represent my copyright interests?

Once your music is published, and you put the (c)2006 (Your Name) on the score (or better yet, you register a copy with the U.S. Copyright Office) if someone "steals" your music; even uses a substantial part of the melody in a "sample" e.g., in a Rap music mix background, you're technically protected. However, you must then pay for your own lawyer (beaucoup bucks) and sue for damages. Now who wants to go up against P-Diddie (or whatever his moniker of choice is at the time) or worse, Def Jam Records (a number of whose personnel now languish in prison for gun charges and a number of whose artists have been shot to death in mysterious, unsolved incidents)?

Do you really want to be the one who sues a zillionaire like Billy (hic) Joel after he's made a hit out of your record and have all manner of fans and crazies come out of the woodwork in his support (and perhaps sending you anonymous death-threat letters) when it comes time for your day in court?

Furthermore, if you choose not to use a licensing agency, then how will you receive payment should your own performance of the piece be recorded and hit the airwaves and the download sites. Someone would have to account for that. You would, however, be compensated if you sold the rights to your catchy tune to a licensed group that was interested. By assigning the copyright, that group or individual can then agree to pay you a portion of the royalties received (if any).


What's the RIAA and what do they have to do with this?

The Recording Industry Association of America is most famous for being the organization behind the Grammy Awards. Although they pay a lot of lip-service to their commitment to "protecting artists", they actually represent the interests of record companies. They go after folks like Napster and people who share music over the internet; and the people who purchase a CD (or DVD) and then make "bootleg" copies and distribute them without paying royalties (presumably to The Big Three mentioned hereinabove). There are many fine writeups on the RIAA herein so I won't go into much detail. Suffice it to say that the Big Three supposedly protect the artist's interests before it's recorded; the RIAA takes over the watchdog role after one's music is recorded.

It should be noted that prior to the advent of the CD, the RIAA was the organization that got the record companies together to standardize frequency response curves in vinyl records, so one doesn't have to adjust the bass and treble controls each time a different phonograph record plays. They also standardized the bias on tape-recordings so that the best fidelity would be heard by the listener (remember the "bias" switches on tape decks that'd change from "normal" to "Dolby"?

The RIAA is the bane of groups fighting for the rights of free-distribution of music on the internet. The issue is still being forced to litigation in many venues. They're also being accused of bias (pardon the pun) with regard to the awarding of Grammy Awards and price-gouging, among other questionable practices.

My thanks to Phyrkrakr for reminding me that any artist is free to copyright music and then proceed to protect his/her own interests if the copyrighted material is misused. Thanks also to spiregrain for mentioning the RIAA's issue. AND PLEASE DON'T GET ME STARTED ON THE A&F of M, THE MUSICIANS' UNION — THE LAST GUY WHO MENTIONED "UNION" IN MY PRESENCE GOT WHAT HE DESERVED: A REDUCTION IN PAY TO "UNION SCALE".

SOURCES:

  • ASCAP: http://www.ascap.com/index.html (Accessed 1/11/07)
  • BMI: http://www.bmi.com/ (Accessed 1/11/07)
  • SESAC: http://www.sesac.com/ (Accessed 1/11/07)
  • ASCAP & BMI -- Protectors of Artists or Shadowy Thieves? (by Harvey Reid, 1993) http://www.woodpecker.com/writing/essays/royalty-politics.html (Accessed 1/11/07)

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