Law: The Legal Reasoning Behind Your Need To Affiliate With
Either ASCAP or BMI
By: Paul W. Gardner, Esq.
(410) 528-1595 o
(410) 528-1597 f
Article I of the U.S. Constitution was created
in 1789. It is the basis of today's copyright laws. It addressed
a major concern to protect the interest of those who, through
their creativity, were able to constructively contribute to
society. Today’s copyright laws were created in 1906
(revisions in 1909) where music is considered a property which
the composer owned. Authors and composers of music were given
specific rights to collect royalties for use of their music.
These royalties were limited to public performances which
Copyright law requires that the producer
or sponsor of a public performance of copyrighted musical
works -- live or recorded-- must obtain permission (usually
by music licensing) from the copyright owner. If you do not
get this permission then you are subject to criminal penalties
under the provisions of the U.S. Copyright Law.
Producer or sponsor is the association, company,
producer or person who causes the music to be performed.
Public performance , according to the copyright
law, is a performance held outside a normal circle of family
and friends. This includes: concerts, conventions, expositions,
industrial show, meetings, trade shows, satellite teleconferences
and similar events. Even private clubs are included -- almost
any meeting where more than just family and friend are gathered.
Fermata International Melodies, Inc. v. Champions Golf Club,
Inc. is an interesting example. This case involved a Houston
golf club which, one night in 1986, played certain songs on
a stereo phonograph using external speakers into the club's
dining room; just 21 club members and their guests were present.
ASCAP members brought suit for copyright infringement. The
ASCAP members prevailed and the court awarded $8,000 as well
as costs and attorney's fees.
Musical works i ncludes all forms of music,
live or recorded via tape, broadcasts, records, CD, and music
in video and audio presentations.
Music licensing is the granting by the owner
of the right to publicly perform copyright music to another,
thus permitting the recipient to perform he music in public.
In return, the recipient of the right -- the licensee-- pays
the owner a royalty fee.
The American Society of Composers, Authors
and Publishers (ASCAP) was formed by Irving Berlin in 1914
as a performers' rights organization because it was impractical
for users to individually license each song that was published.
ASCAP was, however, an elitist organization and had little
to do with musical works that were considered to be country
or rock & roll, as well as several other genres. Thus,
in 1939, a group of about 600 broadcasters boycotted ASCAP
music and created Broadcast Music Incorporated (BMI) to fill
this gap for a growing record and radio industry.
ASCAP and BMI today boast repertoires of
3.5-4 millions songs (95% performed music) and collect over
95% of all the American performing rights royalties. They
both are non-profit voluntary associations that actively and
aggressively compete with each other for members. These music
licensing societies are authorized to collect fees on the
behalf of their songwriter
They are also very aggressive in the copyright
policing/monitoring activity and copyright enforcement procedures.
They have been collecting licensing fees for years from clubs,
bars, hotels, restaurants, jukeboxes, elevators, amusement
park, and most all other profit making agencies that use music.
They are "deep pocket" organizations with annual
combined revenues of three-quarters of a billion dollars and
are well prepared to flex their legal muscles. This is why
every artist must affiliate with either ASCAP or BMI!
There are other licensing organizations (eg.
SESAC -- the Society of European State Authors and Composers)
who collect fees in a different manner.
Copyright law violations carry severe penalties,
including damages of not less than $500 or more than $100,000
per song as well as court costs and attorney's fees.
ASCAP and BMI both monitor compliance through
a network of industry contacts – the Music Police, who
are typically music instructors that go to events in their
own community, write down songs, and turn the lists in. ASCAP
for example, maintains a national field staff of 200 to just
monitor compliance of just the convention industry!
Just to be clear though, there are exemptions
in the copyright law which allow the playing of music without
the payment of royalties:
1. A gathering of family
and friends (does not constitute a performance)
2. Public domain music
(a) Music licensed before 1978:
(b) Music that is 75 years old that has not
been revised and copyrighted. (Most music written before 1917)
After 1978: protection expires 50 years after the death of
the last surviving author or composer
3. Education: face-to-face
teaching activities of a nonprofit educational institution.
4. Religion: Religious music
played during the course of services at a place of worship.
(However, religious music played at a banquet at which a prayer
is said before the meal is not exempt.)
5. Non-profit: Music is
exempt when it is performed without any direct or indirect
commercial advantage and without payment of any fee or other
compensation to any of the performers, promoters, or organizers,
and usually where no admission is charged. If admission is
charged, the proceeds, less the reasonable costs of producing
the performances, are exclusively for educational, religious,
or charitable purposes.
6. Public reception by a
single receiving apparatus of a kind commonly used in private
homes with no admission. A TV or radio can be played in a
store, for example, if no additionally speakers are used.
7. Agricultural fairs
8. Record stores
9. Handicapped: Transmission
to blind or deaf audiences of non-dramatic literary works
and single transmission to blind audiences of dramatic literary
works published at least ten years earlier.
The bottom line is that if your copyrighted
music is played at clubs, bars, hotels, restaurants, jukeboxes,
elevators, amusement park, and most all other profit making
agencies that use music, you must be affiliated prior to getting