FMC is pleased to submit the following comments to the Department of Justice (DOJ) Antitrust Division regarding the agency’s review of the Antitrust Consent Decrees for the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI).
Moreover, FMC appreciates the opportunity to address the persistent issues songwriters and independent music publishers face under the Consent Decrees, particularly a lack of transparency and failure to balance interests in the licensing of musical works for public performance, as well as barriers of entry for independent songwriters, publishers, and music platforms.
FMC commends the DOJ for reviewing the Consent Decrees and also commends the agency’s commitment to maintaining healthy competition within the licensing of musical works for public performance. Despite some differences with ASCAP, BMI, and the major consolidated music publishers, we are encouraged that many in this space have expressed their desire to nurture songwriters and expand transparency. We see the DOJ’s review of the Antitrust Consent Decrees as an important opportunity to highlight issues with consolidation of the music industry, the need for fair compensation and stronger protections for songwriters, as well as the importance of ASCAP and BMI to a functional music industry that serves the needs of creators.
FMC’s comments will address the specific questions raised by the DOJ in soliciting public comment for the review.
General Comments for the Review of the ASCAP and BMI Antitrust Consent Decrees
Do the Consent Decrees continue to serve important competitive purposes today? Why or why not? Are there provisions that are no longer necessary to protect competition? Are there provisions that are ineffective in protecting competition?read more
It used to be that big companies were able to define the parameters for debate about music industry issues, and make all the big decisions. What was good for corporate media and big money, we were told, was good for the artists, and for the music industry as a whole.
The desire to tell a more complete and accurate story centered on the needs and experiences of musicians was a big part of why Future of Music Coalition got started 14 years ago. By now, more people understand that the agendas of a handful of giant music companies may sometimes align with artists, but not always. In fact, these companies are very capable of misdirection when it benefits their bottom line. And tech companies don’t have a lot of experience working directly with artists, in part because the existing structures so often compel big-money negotiations with the major rightsholders. Today, we’re thrilled to see more and more artists speaking openly about the issues that impact their livelihoods. Independent labels are getting bolder too, in demanding fair treatment and respect for their different way of doing business.
You may have heard that the United States Department of Justice (DOJ) is investigating potential anticompetitive behavior by major music publishers and Performing Rights Organizations (PROs), which collect and distribute royalties to songwriters and publishers for the performance of musical compositions. These “blanket licenses” are made possible by DOJconsent decrees and cover all forms of broadcast as well as concert venues or other establishments that publicly perform music (think bars or restaurants).
Make no mistake, PROs are crucially important to songwriters. They provide leverage to artists who wouldn’t otherwise have it in rate negotiations with music services; they pay their songwriter members directly under fair splits (50-50 between artist and publisher); and they allow music to be efficiently licensed to AM/FM, Internet and satellite radio, which means listeners have more opportunities to hear music, and songwriters have more opportunities to get paid.
by Kevin Erickson, Communications Associate & Jordan Reth, Policy Fellow
You may remember back in March 2013, when Register of Copyrights Maria Pallante—our nation’s highest ranking copyright official—told the House Judiciary Subcomittee on Courts, Intellectual Property and the Internet, “Music licensing is so complicated and broken that if we get that right, we can get the whole [copyright] statute right.”
Well, after more than a year of hearings examining the nation’s copyright laws from many different angles, that same subcommittee finally tackled music licensing directly on June 10. It was a wide-ranging discussion, touching on multiple pieces of legislation currently under consideration, offering a preview of legislation around the corner, and laying out a range of views of how music licensing ought to be structured.
The Internet Radio Rate Wars continued this week, as performing rights organziation (PRO) ASCAP squared off against Internet radio giant Pandora in a federal court. The outcome could determine how royalty rates are set for PROs, webcasters, songwriters and publishers well into the future.
To the casual observer, musicians probably seem like a disorganized bunch. Unlike doctors or lawyers, there are no qualifying exams or prerequisites that certify a musician’s level of “professionalism.” On a group level, there is no central organization that represents their collective interests.
But that’s not the case. In addition to record labels, booking agents, managers and other teammates, musicians and songwriters can align with a vast array of music-related organizations that serve a number of purposes, everything from performance rights organizations like ASCAP, BMI, SESAC and SoundExchange, to unions like AFM and SAG-AFTRA, to genre- or role-based organizations like Folk Alliance, Chamber Music America, or the Songwriters Guild.
As musicians and advocates, we at FMC know that these organizations serve an important purpose, and we have a sense that membership makes a difference. But in what ways? Do musicians that belong to certain organizations participate in more revenue streams? Do they make more money because of these allegiances? Or is the inverse true; do particular types of work make it possible and/or necessary for musicians to join certain organizations?
The Future of Music Coalition (FMC), a national nonprofit advocacy group for musicians, has launched the Artist Revenue Streams (ARS) project, a multi-phase research effort that aims to document how today’s musician earns a living.
In the project’s first report, performance rights royalties have emerged as one of the most dependable, longest lasting sources of income for songwriters and composers. The findings independently emphasize the vital importance of BMI membership for creators, many of whom rely on BMI earnings their entire lives.
The ARS project will reveal more data gathered from a second test group in May 2012.
Well, maybe not the sound check, but the live performance counts — at least with BMI. The Performance Rights Organization (PRO) BMI recently established BMI Live, an online program that lets songwriters upload setlists from their performances at live music venues — and receive payment for the songs that are played.
BMI has always paid royalties based on live performances, but only conducted a census survey on the songs played on the top 200 tours.
With BMI Live, the PRO aims to provide its registered songwriters and composers with financial revenue from performance venues as small as your local music venue, or as large as Madison Square Garden. read more