Friday, August 3, 2007

An attempt to explain a faulty equation

Over the past few days there has been a tempest of sorts on the esteemed music site Brooklyn Vegan, regarding ASCAP. To summarize, ASCAP has filed suit against some bar-type establishments (as it does from time to time) because they don't have a licensing agreement for the music they play. In response to B.V.'s critical (if legitimate) post about the suits, and some scathing comments to the post, an ASCAP representative contacted Brooklyn Vegan with a defensive statement. B.V. posted excerpts of the statement, and the comments to that post made it clear that a lot of people don't understand how music licensing works. Maybe I can help. I'll say in advance that I have no intention of defending ASCAP or the system as it functions now.

We recognize two sources of creativity in popular music: a song's writer(s) and its performer(s). And we generally agree that both parties deserve compensation for their work. Songwriters tend to register their songs with a publisher of which ASCAP is one of the largest. Performers tend to copyright their particular performance of a song through a record label, whether it's corporate or their own imprint.

Every time that version of a song is played in a situation where someone is making a profit (e.g. movie, commercial radio, nightclub) two things are supposed to happen: the publisher should collect a royalty that is distributed to the songwriter, and the record label should collect a royalty that is distributed to the performing artist. (Obviously, the songwriter and the performing artist could be the same person.)

Sometimes the royalty is standardized, as with radio airplay. Other times it is negotiated, as with use in a movie soundtrack. Radio stations compile a list of every song they play, and how many times, and turn the money over accordingly. (Note that those rates are low, because everyone recognizes the promotional value of radio airplay. Then again, internet radio has been desperately trying to beat back legislation that hiked up their royalties to significantly higher rates than commercial radio, so maybe the collective wisdom isn't so dependable...) Music supervisors negotiate contracts with both the publisher (on behalf of the songwriter) and the performing artist (often directly) for the song's use in synchronization with a moving image, and pay accordingly.

It's all great in the abstract, and we indie enthusiasts probably agree in spirit - after all, who is more deserving than struggling indie artists of every nickel and dime they have coming to them? But of course it's not that easy, because, as ASCAP's statement reveals, the system doesn't really work that way, at the moment.

First off, there's the bar scenario. On the one hand, the bar is making money, and it would be a chess club without music, so don't the artists deserve something? On the other hand, where is the line drawn? If the DJ paid for the CD, or the bar downloaded the mp3 from a commercial source, why hasn't the license been covered? The radio stations get their copies for free, and no one would say that a hundred people in a bar compare to the millions who see a movie.

Second off, ASCAP admits openly that it can't possibly connect each song played in a bar setting to each deserving party. So is it ethical to enforce royalty collection if you can't distribute it fairly? (And we all seem to agree that their fraction-of-a-percent pot luck scheme is totally bogus.)

Third off, why don't the record labels seem to be as concerned? They could file the same lawsuits for a parallel infringement, on behalf of the performing artists. Is it because they've weighed the situation and determined pragmatically that it's more trouble than it's worth?

The music industry is sorely in need of modernization on several fronts, and royalties are definitely one of them. Why do royalties still have to be filed on paper? Isn't that so... eighties? Why isn't there an electronic/internet system that would reduce the time and expense to process royalties AND greatly increase the accuracy of their distribution?

That's the closest I can come to proposing a solution. In the meantime, it's not a satisfying arrangement for anyone, and there's a lot of money at stake.