By Jeff Price
Here’s the deal: for those of you who know what a public performance is, skip down three paragraphs. For those who don’t, it’s important you know what the public performance right is, as it’s one of your copyrights and it makes you money.
Under U.S., and most international law, the moment a song leaves your head and becomes tangible (meaning it has been recorded and/or written down) you get six legal copyrights. One of these six copyrights is the exclusive right to “Publicly Perform.” The right of public performance means that no other person or entity can publicly perform your song without a license from you. A “public performance” is: your song in a YouTube video, radio play, a stream from Spotify or Pandora, music played in live venues, jukebox play, music played in retail stores and bars, etc…
Any entity that wants to publicly perform a song must get a “public performance” license from the entity that controls the right. The songwriter controls this right unless he or she has done a deal transferring it to another entity called a “publisher” or a “publishing administrator.” Almost all songwriters and/or publishers outsource the job of issuing public performance licenses to third party organizations called Performance Rights Organizations (PROs). These organizations deal with and license this one right on behalf of their members.
In the United States there are three performance rights organizations: BMI, ASCAP and SESAC. Entities, like radio stations, tv stations, venues, etc… purchase blanket public performance licenses from these organizations, who are acting on behalf of the songwriter and/or publisher. Each time a songwriter’s song is publicly performed, the songwriter/publisher is to be paid by the performance rights organization from the money it collects.
However, in the U.S., BMI and ASCAP have such a monopoly in the public performance licensing business that the government decided it needed to intervene and regulate them so no one got screwed. Therefore, the government issued something called a “Consent Decree” that dictates what ASCAP and BMI can and cannot legally do. (SESAC does not have a governmental consent decree as it does not have a large enough market share to be of concern to the government).
As one example of what you can find in the consent decree, note how the government will not allow ASCAP (or BMI) to have exclusive rights to represent you.
IV. Prohibited Conduct. ASCAP is hereby enjoined and restrained from…
(B) Limiting, restricting, or interfering with the right of any member to issue, directly or through an agent other than a performing rights organization, non-exclusive license to music users for rights of public performance.
What this means is you have a choice. You, or the entity that controls the public performance right, can decide to issue your own public performance license with whomever you like even though you are signed up with ASCAP.
If you do this, it means you make more money, as ASCAP will not be taking its 12-20% “administrative fee” off the top.
For those of you who have signed up with these PROs, you should read the consent decrees. Why? Because as you hired these organizations to work for you, you should know the rules. With this knowledge you can make informed decisions and decide if they are doing their job. If they are not, fire them.
Armed with information that protects you, the next time a PRO refuses to provide you with information such as what rates they charge someone or how they calculate your royalties, now you have your knowledge of the consent decree to support your request.
Here’s some icing on the cake. The U.S. Department of Justice has a separate division that actually oversees BMI and ASCAP to make certain you don’t get screwed. If your PRO tries to bully you, doesn’t respond to you, or does something that violates the consent decree, you can call the Department of Justice and tell them. It’s the DOJ’s job to follow up with the PRO to make certain they follow the law.
We now present to you for download as PDFs the two very public, but hard to find, Consent Decrees that govern how ASCAP and BMI work.
We think you’ll find these documents to be pretty interesting. In some ways, you, educated artists, may be the PROs’ worst nightmare, as the last thing they want is an educated boss!
So read away and post your findings or comments here.
