Composers know that they should sign up with a Performing Rights Organization (PRO) such as ASCAP, BMI and SESAC to make sure they receive royalties for when their works are publicly performed in live performance venues, when broadcast on radio or TV or streamed over the Internet. Most people don’t realize, however, that when a work is played over the radio in the US, the writers and publishers of the composition receive payment for the performance through the PROs but the recording artists and record labels don’t receive a dime. So, whenever a radio station played Frank Sinatra’s recording of “New York, New York”, Kander & Ebb and their publisher got paid, but Ol’ Blue Eyes and Reprise Records did not.
In most other countries, there is a public performing right in a sound recording, but not in the US. There have been attempts over the years to fix this inequity. For example, since 1995, as amended in the Digital Millennium Copyright Act of 1998 (DMCA), there has been a limited public performing right in a sound recording. But, it only applies to “digital transmissions” which basically constitutes streaming over the Internet. SoundExchange was formed to act as a licensing collective, like the PROs, for this growing revenue stream and they pay artists and labels.
Last month, however, something occurred that may be a step in the right direction. Clear Channel, which owns 850 radio stations, and Warner Music Group, one of the industry’s major labels, announced a private deal where Clear Channel will pay public performance royalties to Warner and their recording artists. Clear Channel, apparently, will get a more favorable rate with respect to online streaming, which if you have been following what has been going on with Pandora’s continuing lobbying of Congress to reduce the rates they pay, has been an ongoing battle between webcasters and publishers and labels. Warner, in return, will receive promotion from Clear Channel, which likely means increased airplay, for their artists.
Is this a good thing? Paying artists and labels for the public performance of their recordings is certainly a step in the right direction toward aligning the US with the rest of the world. But at what cost? In exchange for increased exposure on Clear Channel stations, royalty rates for streaming are being nearly cut in half. And unlike the situation with SoundExchange, artists are not directly paid, but will be paid by the label. What is perhaps of even greater concern, however, is that this is a private deal between two industry giants. It remains to be seen whether this will deal set a precedent that will eventually enable all recording artists and labels (including indie, and artist-produced recordings) to collect public performance royalties. It probably won’t happen soon. A Congressional bill that would have given labels and artists a public performing right akin to what composers and publishers have long enjoyed died in committee in 2009. But one can hope – and lobby your local Congressman.
Update: On September 30, right before the government shut down, Rep. Melvin L. Watt (D-NC), introduced H.R. 3219, the Free Market Royalty Act, which would among other things create a public performance right in sound recordings when played on AM or FM radio.
This article was originally published in September 2013 on the ScoreStreet web site.