Performance Right ? A World in Transition ABATodd

The Performance Right – A World in Transition
By : Todd Brabec
(American Bar Association "Entertainment and Sports Lawyer", Volume 31,
Number 4, February, 2015)
Title 17 of the United States Code/Section106:
“Subject to the sections 107-122, the owner of a copyright under this title has the
exclusive right to do and to authorize any of the following: In the case of literary,
musical, dramatic, choreographic work, pantomime and motion pictures and
other audiovisual works, to perform the work publicly; and in the case of sound
recordings, to perform the copyrighted work publicly by means of a digital audio
transmission.”
These two exclusive rights of copyright are at the heart of the worldwide business of
music. They involve musical compositions and sound recordings, the rights of copyright
owners and limitations on those rights and how creators and copyright owners are
compensated.
The Music Business Pre-Digital
In the world of traditional media – radio and television primarily – the music licensing
process has evolved into a fairly straightforward process. For musical compositions,
songwriters, composers and music publishers join or affiliate with ASCAP, BMI or
SESAC (performing rights organizations/PROs) who negotiate license agreements for
the use of music, collect the fees and distribute them back to writers and publishers who
have performances in specific media. If the PRO and a user cannot come to an
agreement as to license fees, courts intervene and determine “reasonable fees” for
music use.
In the area of sound recordings, performances on traditional over the air radio are
exempt from royalties and considered as “promotional” tools to drive sales. A record
company’s main source of income, other than record sales, comes from the licensing of
master recordings to television series, feature films and advertising commercials among
other uses. And then came the online/digital world – a technological revolution that
changed everything.
A rather simplistic view of the music business but one that serves as an appropriate
starting point for an increasingly changing and complex business.
Musical Compositions
In the United States, there are three primary organizations that represent songwriters,
composers and music publishers on a non-exclusive basis in the negotiation, collection
and distribution of music performance license fees. The organizations are the American
Society of Composers, Authors and Publishers (ASCAP/1914), Broadcast Music Inc.
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(BMI/1939) and SESAC(1930). They are referred to as performing right organizations
(PROs). The primary sources of license fees are traditional radio, broadcast and cable
television, and general licensing (live performance, music in bars and restaurants etc.).
New Media license fees, which include online and digital music services, currently
represent a relatively small portion of U.S. domestic music license fees (approximately
100 million dollars of a total annual U.S. domestic PRO collections of 1.4 billion dollars).
Royalty distributions are made 50% to writers and 50% to music publishers after
operating costs are taken into account (approximately 12-13% in the case of ASCAP
and BMI). There is a PRO in practically every country of the world where via reciprocal
agreements with ASCAP, BMI and SESAC, U.S. writers’ and publishers’ works are
represented and paid for when performances occur in foreign territories.
In the case of ASCAP and BMI, both entered into Consent Decrees with the government
in 1941 with amendments to those Decrees in 1950, 1960 and 2001 in the case of
ASCAP and in 1966 and 1994 for BMI. One aspect of these decrees which has had a
significant effect on the determination of license fees is the existence of a separate
“Rate Court” for ASCAP and for BMI which comes into play when the PRO and a music
user cannot come to a negotiated agreement as to what “reasonable” license fees
should be in any given area. The decree allows any party to apply to the Court (U.S.
District Court for the Southern District of New York) for a determination of interim and
final fees. These Rate Courts have been in existence with ASCAP since 1950 and with
BMI since 1994 and have determined fees and license terms for the major traditional
media areas of radio and broadcast and cable television as well as in recent years, the
online music community. It is in these latter "new media" decisions and settlements
where most of today’s complex issues have arisen.
SESAC, the smallest of the U.S. PROs, operates on a for-profit basis as opposed to the
non- profit operations of ASCAP and BMI, is not governed by a Consent Decree with the
government and does not have a "Rate Court" type procedure for license fee
adjudications and disputes. Under a recent October, 2014 settlement with the
Television Music License Committee regarding a class action antitrust suit involving
local television stations though, SESAC has agreed as part of the settlement to binding
arbitration for any future licensing fee disputes with the Settlement class which cannot
be resolved by negotiation. It was further agreed that SESAC could not interfere with
the ability of any affiliate to issue a public performance rights license directly to a
Settlement class member. A Final Settlement Approval Hearing is set for March of 2015
in the U.S. District Court for the Southern District of New York (Meredith Corporation et
al v. SESAC LLC).
In the online world of music licensing, the ASCAP rate court has been instrumental in
deciding not only what “reasonable” license fees should be but also what is actually
licensable by the U.S. PROs. Interim fee and final fee decisions have involved many of
the biggest players in the “new media/technology" world and have resulted in license
fees significantly below what the PROs and copyright owners were requesting. To put
the online fees into perspective, ASCAP, BMI and SESAC collected approximately 1.4
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billion dollars in domestic U.S. license fees (radio, broadcast television, cable, live, etc.).
Of this amount, approximately 100 million dollars was generated from all online/digital
uses. An additional 700 million dollars is received each year by the U.S. PROs from
foreign collection societies (PRS for Music, GEMA, SACEM, SIAE, SGAE, SOCAN,
APRA, IMRO, JASRAC, BUMA etc.) for performances of U.S. writers works performed
in foreign countries with a small portion of that money attributable to online uses. Most
publishers, incidentally, collect their foreign country performance royalties directly from
those societies as direct members or through sub-publishers.
Commencing with the 2007 AOL/Real Networks/Yahoo case, rate court filings, hearings
and decisions have involved YouTube, MobiTv, AT&T Mobility, Verizon Wireless, Spotify,
Ericsson and Netflix, among others. Details of these proceedings were covered in detail
in a 2011 ABA Entertainment and Sports Lawyer article entitled “Online Music Licensing:
From PROs, AOL and MobiTV to Sound Exchange, AT&T and the CRB"(Todd Brabec
and Jeff Brabec). A brief summary of some of the most important points of these cases
should help in understanding the current status of online performance licensing:
The AOL/Real Networks/Yahoo rate court case had major worldwide significance as
there was a summary judgment ruling that the downloading of a music file did not
constitute a public performance under the Copyright Act- a ruling totally contrary to the
laws of most other countries with the exception of Canada. This decision was affirmed
by the 2nd Circuit Court of Appeals with cert denied by the U.S. Supreme Court. The
Circuit Court also remanded the fee formula back to the District Court for further
proceedings.
The 2009 Verizon Wireless rate court case reaffirmed the AOL “no performance in a
download" decision in a ruling that stated that the transmission of a ringtone to a cellular
telephone customer did not constitute a performance and that the mechanical ringtone
rate of 24 cents per download was the only appropriate right and compensation
involved. The primary issue of the 2009 AT&T case was whether previews of ringtones
were to be considered “fair use” rather than licensable performances. The court ruled in
favor of ASCAP and a customer’s previewing of ringtones were therefore licensable by
the PROs. An interim fee 2009 decision regarding YouTube was a good example of the
size of court set "reasonable" music license fees with an order of $70,000 a month.
The 2010 MobiTV case involved what a reasonable license fee should be for the
delivering of television programming to mobile telephones and audio channels. In this
case, the court returned to the early 1990s ASCAP performance licenses with Turner
Broadcasting which set a three-tiered license based on the music intensity of the
program. The music intensive fee was 0.9% of defined revenue with a 0.375% for
general entertainment and 0.1375% for news and sports programming. The 2nd Circuit
Court of Appeals affirmed the lower court decision. All of the aforementioned cases
were eventually settled with additional settlements and agreements entered into with
Apple, Rdio, Spotify, Netflix, Hulu, as well as others. Practically all settlements in this
area are confidential.
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DMX and Pandora
Two additional Rate Court cases, DMX and Pandora, involved not only the
determination of reasonable license fees but also the role that Direct Licensing plays in
the PRO licensing picture. Under the ASCAP and BMI Consent Decrees, the
agreements that writers and music publishers sign with ASCAP and BMI are non-
exclusive- members and affiliates are allowed to directly license their works to a music
user and bypass the PRO structures entirely.
DMX is a leading background and foreground music service provider which provides
pre-programmed music for business establishments via direct broadcast satellites or on
premise delivery mechanisms. DMX hired a company to assist and design a direct
licensing program with copyright owners which eventually resulted in direct licenses
representing over 7,000 catalogues including one major music publisher, Sony. DMX
was requesting from ASCAP and BMI a "through to the audience" blanket license which
reflected the DMX direct licenses already obtained as well as those to be negotiated in
the future.
In July of 2010, the BMI Rate Court entered a final rate for the blanket license subject to
adjustment of DMX's BMI performances directly licensed. In a separate decision, the
ASCAP Rate Court ruled that ASCAP is required to issue to DMX a blanket license with
"carve outs" for the direct licensing program. Both decisions were appealed to the 2nd
Circuit Court of Appeals which in June of 2012 affirmed the District Court decisions. The
resulting rates significantly reduced the license fees that DMX was paying to ASCAP
and BMI.
Pandora is the leading Internet customized radio service and is considered a non-
interactive service as opposed to an on demand/interactive service where the user
chooses what they want to hear. Pandora entered into license agreements with both
ASCAP and BMI in 2005 and terminated those licenses at the end of 2010 and 2012
respectively. In the case of ASCAP, Pandora applied to the Court for a through-to-the-
audience blanket license for the period 2011 through 2015. In the case of BMI, Pandora
filed an application for a 5 year license commencing January 1, 2013.
Based primarily on the small license fees that were awarded by the ASCAP and BMI
Rate Court judges commencing with the AOL/Real Networks/Yahoo case in 2007, the
major music publishers, starting with EMI (later acquired by Sony), notified ASCAP and
BMI that they were withdrawing their catalogues for online licensing purposes. The
majors felt strongly that they could negotiate more financially acceptable online value
deals than the arrangements that had been set by prior Rate Court decisions and the
subsequent settlements emanating from those decisions. These online media
withdrawals were accomplished by specific changes in the rules, regulations and
practices of ASCAP and BMI. Upon withdrawing their works, a number of the publishers
entered into direct licensing deals with Pandora. In effect creating a system whereby
Pandora had licenses with ASCAP, BMI and SESAC as well as short term negotiated
direct performance licenses with the major publishers. Discussions were also held
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between ASCAP, BMI and the major publishers with a view toward ASCAP and BMI
handling the administration of the online licenses negotiated by the publishers.
In response to a Motion for Summary Judgment in September of 2013, Judge Cote, the
ASCAP judge, ruled that a selective withdrawal of new media rights by publisher
members could not be implemented without violating the Consent Decree and further
that the ASCAP repertory subject to that license is all works in ASCAP at the time
Pandora applied for a license (January 1, 2011)-not when the final license is arrived at.
In short, an application for a license is treated as a license in effect and in this case no
works could be removed by any ASCAP member during the period 2011 through 2015.
And when works are finally removed by any publishers, those works have to be
removed for all licensing purposes, not just for online licensing. Any users with license
agreements still in effect at the time of the withdrawal could continue to use the
withdrawn works up until their specific license agreement expires.
In a similar Motion for Summary Judgment in the BMI case, Judge Stanton allowed the
removal of works which occurred prior to January 1, 2013 but ruled that those works
could not be licensed by BMI to any others after any existing license agreements
expired. If BMI cannot offer those compositions to new media applicants, their
availability does not meet the standards of the BMI decree and they cannot be held in
the BMI repertory. The BMI/ Pandora Rate Court trial is set for 2015.
To put both judges "all in or all out" Summary Judgment decisions into real world
perspective, if one were to remove works from the current 100 million dollar PRO
annual license fee area of the online world, one would be forced eventually to remove
those works from the other 1.3 billion dollars in PRO domestic license fees being
generated by traditional media(radio, broadcast television, cable, live, etc.). Not to
mention the effect that such withdrawals would have on the reciprocal "flow through of
money" agreements between foreign collection societies and the U.S. PROs. As a point
of reference, it is important to note that practically all new PRO licensing deals with
traditional media (radio, television, etc.) include streaming, website music uses, mobile
apps, digital and primary broadcasts, mobile and wireless platforms, webcasts and
multi-casts.
On March 14, 2014, Judge Cote issued her "determination of reasonable license fees"
136 page decision in the ASCAP/Pandora Rate Court case. The judge ruled that the
appropriate fee for the years 2011-2015 was 1.85% of revenue less certain deductions.
ASCAP had requested a rate of 1.85% for 2011 and 2012, 2.5% for 2013 and 3% for
2014 and 2015. Pandora had requested a rate between 1.7% (the current traditional
radio rate-Pandora had acquired a small radio station in an attempt to qualify for this
rate) and 1.85% (the ASCAP form rate in effect for Pandora since 2005).
Two of the more important issues in the Pandora Rate Court Proceedings involve the
concept of the divisibility of copyrights which allow a publisher/copyright owner to make
deals with various classes of users for their catalogue and the disparity in payments
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between artists and record companies and songwriters and music publishers for the
same type of performance.
As to the latter issue, the AOL/Yahoo/Real Networks 2007 Rate Court case provided
evidence of the in excess of 30 million dollars paid by these services to the major record
companies over a 2 year period whereas their fees to the PROs were, in comparison,
very small. As to Pandora, the company expended in 2013 approximately 315 million
dollars of its total revenue of 600 million dollars on Content Acquisition. Of that amount,
close to 290 million went to SoundExchange for artists and record companies with all
three PROS collecting a total of less than 25 million dollars for songwriters and
publishers. As a point of additional reference, total 2013 limited performance right
statutory royalties to SoundExchange were 650 million dollars in addition to significant
record company interactive streaming license fees and payments negotiated with the
services whereas combined ASCAP, BMI and SESAC revenue for all new media uses
from all licenses and services was less than 100 million dollars.
In July of 2014, ASCAP, along with Universal Music Publishing, Sony/ATV Music and
EMI Music as intervenors, filed an appeal from the two District Court opinions with the
U.S. Court of Appeals for the 2nd Circuit. The basis of the appeal was that the District
Court erred in ruling that AFJ 2 (the Amended Final Judgment of 2001) prohibited
ASCAP from accepting partial grants of public performance rights and that the District
Court in setting a final license fee ignored recent arms length relevant benchmark
agreements.
As to the "partial grants” prohibition, ASCAP’s position was that the Consent Decree
long ago removed any prohibition on the right of members to reserve for themselves the
right to grant exclusive licensing rights to music users. Further, such a prohibition is in
direct conflict with the exclusive rights provided by the copyright law to copyright
owners.
As to the issue of ignoring benchmark agreements in the setting of final reasonable
license fees, ASCAP pointed out that the Sony/ATV Music, EMI Music and Universal
Music Pandora direct license deals were all in excess of the 1.85% court set fee as was
the 2013 negotiated ASCAP Apple iTunes radio license- all “arms length willing buyer
and willing seller agreements”. Further, the 2nd Circuit, in its 2010 Yahoo,
RealNetworks decision, confirmed that a 2.5% rate was a valid benchmark even though
it vacated the District Court’s across the board application of that rate to all of Yahoo
and RealNetwork’s services. Accordingly, the current District Court erred in ignoring the
2nd Circuit’s guidance in RealNetworks which established that a rate of 2.5% revenue
(or higher) is reasonable for all-audio, music-intensive digital music services similar to
Pandora’s.
Direct Licensing
The ability of a copyright owner to directly license a work to a music user and bypass
the PROs was a major issue in the ASCAP and BMI DMX rate court decisions as well
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as the current Pandora litigation. Language in both the ASCAP and BMI Consent
Decrees guarantee the right of any member or affiliate to directly license their works to a
user. SESAC, as it is not under a Consent Decree with the government, incorporates
language in its writer and publisher affiliation agreements that insures the right to
directly license – “publisher retains the right to issue non-exclusive licenses directly to
any third person for the public performance in the U.S., its territories and possessions,
of any work subject to this Agreement.”
When songwriters, composers and music publishers join or affiliate with ASCAP, BMI or
SESAC, they sign representation agreements granting to the PRO the non-exclusive
right to license the non-dramatic public performances of their works. Though each PRO
contract and Governing Documents are different as to terms, length of contract,
withdrawal of works and resignation/termination provisions, dispute resolution
procedures, payments schedules, distribution rules and benefits, they all are non-
exclusive agreements whereby the writer or publisher can license a work directly. The
PROs cannot interfere in any way with this right or the ability to exercise this right.
Language as to the ability to direct license as well as the effect of a direct license has
been standard in many types of industry license agreements including work-for-hire/
employee-for-hire contracts for many decades. A sample clause might read “the
performing rights in the composition, to the extent permitted by law, shall be assigned to
and licensed by the applicable performing rights organization with said organization
authorized to collect and receive all monies earned from the public performance of the
composition and to pay the writers and publishers directly. If to the extent it is unlawful
for the PRO, or any of its affiliates, to issue blanket small performing right licenses or
the applicable performing rights society does not from time to time, for any reason
whatsoever maintain a regular system of collecting performance fees and/or a third
party licensee (i.e., a television network, independent television station, digital music
service, etc.) requires direct licensing of such rights, company and publisher shall have
the right to directly license their respective shares of the public performances rights in
the composition to such third parties. If the company or publishing designee receives a
distribution of earned public performance fees from any source that does not make a
separate distribution directly or indirectly to publisher and to composer, then publisher
shall be entitled to receive its portion of such fees and composer shall be entitled to
receive the writer’s share of such fees”
Additional variations of a direct license clause are as follows:
“Licensee desires to obtain from publisher a blanket license for all necessary
performance, reproduction and distribution rights implicated by the delivery of
programming embodying publisher’s catalogue and publisher is willing to grant such
right to license on a non-exclusive basis".
"The right to publicly perform and to authorize others to perform the composition by
means of a media entity not licensed by ASCAP, BMI or SESAC is subject to clearance
of the performing right either from Licensor or from any other duly authorized licensor
acting for or on behalf of Licensor subject to good faith negotiations in accordance with
established industry customs and practices".
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An issue in many agreements is what happens to the writer share when a copyright
owner, usually the music publisher, directly licenses a work to a user. Clauses range
from “payments to be made based upon the prevailing PRO rates for the specific use”,
“compensation to be negotiated in good faith”, “reasonable fee”, “fee subject to
arbitration”, “a complete buyout with no further compensation or continuing royalties” or
“50% of any license fee received”.
A further unresolved issue as to an allowable and effective direct license under Court or
Consent Decree interpretation involves the situation where a music user( traditional
broadcaster, online music service, etc.) contacts a copyright owner directly with the
request versus the situation where the ASCAP or BMI copyright owner approaches the
user to negotiate a direct license. A fine distinction but an important one in current
litigation and Consent Decree interpretation.
Department of Justice Intervention
In part because of the Pandora decisions, a major development occurred in June of
2014 when the Department of Justice announced that they would review both the
ASCAP and BMI Consent Decrees "to account for changes in how music is delivered to
and experienced by listeners and if so, what modifications would be appropriate". The
Department allowed a 60 day period for comments from any interested party (music
publishers, songwriters and composers, PROs, online service companies, music users
of any nature, the general public, etc.).
A cross section of some of the views were illustrative of the issues as well as the
diametrically opposed positions of many of the parties. The comments very much
reflected a creators v. users scenario.
On the music user side, the National Association of Broadcasters (NAB), the Digital
Media Association (DiMA), Netflix, Fox News, the Radio Music Licensing Committee
(RMLC), the National Restaurant Association and the Consumer Electronics
Association, among others, submitted comments. The creator/copyright representative
side included comments from the performing right organizations ASCAP, BMI, PRS for
Music (U.K.), SOCAN (Canada), JASRAC (Japan), SIAE (Italy) as well as the Society of
Composers and Lyricists (SCL – film and television composers), Nashville Songwriters
Association International (NSAI), the National Music Publishers Association (NMPA) and
the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-
AFTRA), among others.
ASCAP, in its comments, requested that the Rate Court be replaced with a faster and
cheaper dispute resolution procedure, that ASCAP be allowed to bundle and license
multiple rights (the current Decree prohibits ASCAP from licensing any right other than
performance) and allow partial grants of rights from its members. The arguments
centered on the fact that New Media users need multiple rights in their business, that
publishers need flexibility to manage rights and negotiate contracts terms and that
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property rights are divisible, assignable and licensable either in whole or in part. BMI,
who are not prevented from bundling or licensing multiple rights, requested that
publishers be allowed to withdraw digital rights and that a binding arbitration model
replace the Consent Decree mandate.
The SCL (film and television composers and songwriters), were in favor of Consent
Decree changes and expressed concerns that if the major music publishers withdrew
completely from ASCAP and BMI, the transparency and accountability of the PRO
collective licensing model would be affected and further that in a bundled rights situation
it would be difficult to ascertain the value of the performance right in bundled
transactions. Most writers in this field sign “work for hire” contracts where the backend
performance royalties represent a substantial portion of their income. The 165,000
member organization SAG-AFTRA, the largest labor union representing working media
artists, commented that the scales have tipped too far in favor of licensees’ interests
over those of artists and that the rate setting process set forth by the Consent Decrees
is inefficient, expensive and burdensome upon the PROs and if not modified will
significantly devalue a writers’ works.
Sony/ATV Music supported amending the Consent Decrees to allow copyright owners
the ability to limit the scope of the rights they grant to ASCAP and BMI in their musical
compositions and to require the PROs to accept those grants; supported an expedited
arbitration process for resolving rate disputes; and recommended that the reviews of the
Decrees occur periodically to take into account new technology changes and conditions.
Sony/ATV was not in favor of allowing the PROs to handle rights other than performing
rights as it was their position that these markets already functioned well and that the
introduction of such regulated entities into the market for these other rights would be
costly and disruptive.
As to the foreign performing right organizations who submitted comments, widespread
concern centered on the belief that the current Consent Decrees were outdated in
today’s world and that changes were essential if music was to be appropriately licensed
and compensated. Partial grants of rights and the bundling of multiple rights are
commonplace in the foreign marketplace and dispute resolution procedures are less
cumbersome than the U.S. Rate Court. PRS for Music in the U.K., which receives over
100 million dollars a year in U.S. performance royalties for its members from ASCAP
and BMI, expressed concerns over the present Decrees and stated that they would
consider licensing the British repertory directly in the U.S. rather than through
intermediaries if it proved more efficient.
DIMA, a trade organization whose members include Apple, Amazon, Microsoft and
YouTube, stated that the Decrees have not harmed ASCAP or BMI financially in terms
of the music industry generally, and that the PROs must be subject to oversight as their
anti-competitive behavior continues to this day. Further, if the Justice Department does
allow all the PROs to bundle rights as well as allow partial withdrawals, then substantial
oversight must be put in place and that songwriters be allowed to keep their rights with
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their PRO if that’s what they wanted regardless of whether the publisher removed the
works.
The Radio Music Licensing Committee strongly felt that the Decrees were necessary to
keep the market power of ASCAP and BMI in check. Also if publishers were allowed to
withdraw from the PROs, they could leverage their outsize market share to extract
exorbitant license fees from licensees. Both the NAB and Television Music License
Committee also shared these views. As to Netflix, their position was that the Decrees
were in place to constrain the PROs market power. They were against allowing partial
publisher withdrawals but if the Department allowed them, then conditions would have
to be imposed to mitigate any adverse consequences. Finally, the Rate Court must stay
in place though it does need to be streamlined.
Sound Recordings
Prior to 1972, no federal copyright protection existed for sound recordings. Congress
rectified that situation by extending copyright to any recordings that were fixed on or
after February 15, 1972. The owners of the copyright therefore had the exclusive right
to reproduce and distribute phonorecords embodying the sound recording, including by
means of digital transmission, and to authorize others to do the same. Pre February 15,
1972 recordings remained subject to the protection afforded by state laws.
As to the performance right aspect of sound recordings, the right that was enjoyed by
musical compositions was non-existent for records. No performance royalty existed in
any medium for sound recordings. That changed in 1995 with the passage of the Digital
Performance Rights in Sound Recording Act (DPRSRA) which provided for a limited
right when sound recordings are publicly performed “by means of a digital audio
transmission”. The 1998 Digital Millennium Copyright Act (DMCA) included webcasting
as a category of performance applicable to this limited performance right. This new
right applied specifically to satellite radio (e.g. Sirius XM), internet radio (e.g. Pandora)
and cable television music channels (e.g. Music Choice). The applicable sections of 17
U.S.C. are 112 and 114 of the Act. Broadcast radio continued to be exempt.
It is important to note that the statutory license applies only to non-interactive services.
The right to perform copyrighted sound recordings for on demand services (interactive
services) remains with the copyright owner (normally the label) and is a negotiated
agreement between the label and the music user. These deals have taken many forms
including percentage of gross or net revenue formulas, per performance rates, an equity
stake in the business or a combination of these and other elements.
The rates and terms of the sound recording statutory license are set by the Copyright
Royalty Board (CRB), an administrative body created by Congress. SoundExchange, a
non-profit organization, has been designated by the Librarian of Congress and the CRB
to be the sole entity to collect, administer and distribute the royalties from non-
interactive webcasting, digital cable and satellite transmissions and satellite audio
services. Congress also gave SoundExchange the right to negotiate agreements
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separate from those set by the CRB through the Webcaster Settlement Acts of 2008
and 2009. Services therefore can choose whether to be licensed under the CRB rates
or the SoundExchange negotiated rates.
There are 5 major sound recording licensing categories each of which is subject to a
separate rate proceeding. The categories are webcasting, satellite radio, pre-existing
music services, other cable and satellite music providers and business establishments.
An example of one of these proceedings involved Sirius XM satellite radio which
concluded in 2012 and set rates for a 5 year period at 9% of gross revenue for 2013
increasing to 11% in 2017.
Webcasting IV - the proceeding regarding future webcasting rates – commenced in
early 2014 and will conclude at the end of 2015 and will set rates for the period
2016-2020. The most recent 5 year CRB per performance statutory webcasting rates
were $0.0019 for 2011, $0.0021 for 2012 and 2013 and $0.0023 for the years 2014 and
2015.
The Webcaster Settlement Acts of 2008 and 2009 allowed SoundExchange to negotiate
alternative royalty rates (“Pureplay” rates) with certain webcasters. For non-
subscription services and broadcaster’s streaming their content on the internet, the
“Pureplay” per performance rate started as $0.00102 for 2011 and increased to $0.0013
in 2014 and $0.0014 in 2015. The rate applicable is the greater of the per performance
rate or 25% of U.S. gross revenue. The “Pureplay” per performance rate for
subscription services started at $0.0017 in 2011 and increased to $0.0023 and $0.0025
respectively for 2014 and 2015. No percentage of revenue figures applied to the
subscription rate. Under those agreements, Webcasters therefore had a choice to be
licensed through 2015 either with the CRB rates or the SoundExchange “Pureplay”
rates.
As to the current Webcasting IV CRB proceeding, SoundExchange’s initial rate
proposal for the 2016-2020 period was a “greater of” formula taking into account a per
performance rate and a percentage of the service’s revenue. Specifically, the per
performance rate for commercial webcasters would commence at $0.0025 in 2016 with
escalations to $0.0029 in 2020. The percentage of revenue would be 55% for all five
years. Their proposal was based on the fact that webcasting is a vibrant and growing
industry, that it has widespread adoption by consumers and that direct licensing deals
between record companies and on demand services (interactive streaming) were the
most appropriate benchmarks to use. A review of these deals confirmed that the record
companies received a minimum share of 50%-60% of a services revenue with
allocations based on each record company’s share of total streams.
Music services, on the other hand, argued in their direct case that the industry is not
profitable even considering payments under the reduced Webcaster Settlement Act
agreements. Pandora, Sirius XM (streaming component) and the broadcasters through
NAB, among others, came up with proposals ranging from a royalty of $.0005 per
performance for all 5 years to $.0016 pending study of the direct deals to a $.000125
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rate similar to the Canadian rate. Pandora supported a "greater of" rate of $.0010 per
performance or 25% of revenue.
SoundExchange Distributions / Direct Licenses
SoundExchange collected $650 million in 2013 pursuant to the statutory license and
distributed 590.4 million dollars to artists and sound recording copyright owners.
Collections and distributions for 2014 are projected significantly higher than 2013.
Royalty distributions are allocated 50% to sound recording copyright owners (many
times the label), 45% to featured artists and 2.5% each to non-featured musicians and
non-featured vocalists via the Intellectual Property Rights Distribution Fund
administered by the AFM and SAG-AFTRA. An additional $6 million was collected from
foreign country collection societies who handle the performance right in sound
recordings. As to this latter collection, it is limited based on the reciprocal right being
administered in each country. As the U.S. sound recording performance right is a very
limited one (non-interactive streaming primarily), it substantially reduces the amount of
royalties coming into the U.S. for overseas sound recording performances.
Finally, in the case of rights owners wishing to directly license their works to non-
interactive services and not rely on the statutory license or SoundExchange separately
negotiated deals, SoundExchange does offer administration services to both labels as
well as artists for those works.
Pre-1972 Sound Recordings
As previously mentioned, sound recordings fixed prior to February 15, 1972 are not
subject to copyright under 17 U.S.C. and further that any rights they do have depend
solely on whatever rights are afforded to sound recording owners under state law.
In September of 2014, in the United States District Court Central District of California
case entitled Flo & Eddie Inc. v. Sirius XM Radio Inc., the court ruled in a motion for
summary judgment that copyright ownership of a sound recording under the California
statute includes the right to publicly perform the recording and that Sirius XM’s
streaming of the 1960’s band The Turtles’ pre-1972 recordings without authorization and
without paying royalties constituted copyright infringement. In November of 2014, the
U.S. District Court for the Southern District of New York in Flo & Eddie v. Sirius XM
Radio, Inc., ruled that Sirius had committed copyright infringement and engaged in
unfair competition by publicly performing sound recordings owned by Flo & Eddie.
These cases and their appeals as well as similar pending cases regarding the same or
similar issues need to be watched as they could have a very significant impact on future
sound recording license fees as well as royalties to labels and artists.
Where Do We Now Stand
!12

Of the two performance areas under discussion, musical composition rights and sound
recording rights, the sound recording seems much clearer than the composition side.
The sound recording performance right, at least for now, is a very limited right
(traditional radio, for example, is not included) and has a statutory scheme in place with
rates set by either the Copyright Royalty Board, by SoundExchange with users or by
direct negotiations between copyright owners and users. Over the past ten years, this
has been, percentage wise, by far the biggest growth area for sound recording copyright
owners.
The musical composition performance right, on the other hand, has more questions and
unresolved issues in the licensing process than ever before. Not only do you have
unresolved Rate Court cases and issues affecting every aspect of the licensing of music
in the “new media” world (not to mention the effect on traditional media licensing) but
also the entrance into the field of new types of PRO models (music publishers, business
entities, administration services, foreign territory rights management organizations, etc.)
which could, depending on your point of view, significantly complicate the existing
licensing structure for music users, achieve " willing buyer, willing seller " market rates
for the creative community and their representatives, strengthen the arguments for
licensing through the traditional PRO model, weaken the current traditional PRO
structures, increase license fees and royalties in some areas with reductions in others,
initiate an era of PRO selective administration services only, create new writer and
music publisher royalty payment formulas, values, compensation plans, guarantee
arrangements, royalty advance deals, bonus and "rewards for success" policies as well
as other financial incentive plans, among other possibilities and results.
In addition, the Direct Licensing of works by copyright owners, never a major factor in
the past, has taken on new significance in not only the online “new media” world of
music licensing but also traditional media music licensing practices. Finally, the
Department of Justice review of the ASCAP and BMI Consent Decrees, in effect since
1941, could have a significant effect on the future of music performance licensing,
assuming that any changes encompass more than just minor modifications.
The foreign marketplace, responsible for the collection of in excess of 1.5 billion dollars
in annual U.S. writer and publisher performance fees, represents an additional area of
concern regarding the stability, continuation and accuracy of "overseas" royalty
payments. The issues in this area are more significant for songwriters and composers
than music publishers as many publishers collect their monies directly from foreign
societies as members or via sub-publishers. For successful songwriters, film and
television composers and writer estates, foreign royalties- for many, easily in excess of
50 % of their short term and long term royalty income- have always flowed through the
societies through reciprocal agreements and any change in those relationships could
have a major impact on the ability to license, track, audit, collect and receive foreign
country songwriter and composer royalties.
The best advice for the future– in all of your deals, negotiations and contracts--"prepare
for every contingency and possibility," as they may very well come true.
!13

Welcome to the "new world of performance licensing."
c 2015 Todd Brabec
Todd Brabec, Esq., former ASCAP Executive Vice President and Worldwide Director of
Membership, is a Deems Taylor award winning co-author with Jeff Brabec of "Music,
Money and Success: the Insider's Guide to Making Money in the Music Business"(7th
edition/560 pages/Schirmer/Music Sales Books), an Adjunct Professor at USC where
he teaches music licensing, music publishing and film, television and video game
scoring and song contracts, a Governing Committee member of the American Bar
Association Forum on the Entertainment and Sports Industries and an Entertainment
industry consultant and attorney. Contact info: toddbrabec@gmail.com/ website:
musicandmoney.com.
!14

Performance Right ? A World in Transition ABATodd

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