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The Telco Jukebox: Something Else to Think About
by Laurie Hughes
Director of Business Affairs, ASCAP
August, 2003 Issue
Editor’s Note: The following article is a primer on the concept of ensuring that copyright owners of musical composition and performances are fairly compensated. Laurie Hughes will cover this material and how it relates to independent telephone companies at the upcoming iTVcc.
Section 106 of the Copyright Act (17 U.S.C. 106) grants the owner of a copyright in a musical composition a bundle of exclusive rights. For example, the commercially important rights in music include: (i) the right to print music; (ii) the right to make phonograph records and audio tapes; (iii) the right to “synchronize” or record the music in timed relation with visual images; and (iv) the right to perform the music publicly. A copyright enables the author of a work to control, and be compensated for, each protected use of his or her property through appropriate licensing arrangements.
Permission to make copies or recordings (including in movies and videos) of songs is typically obtained from the music publisher (who has in turn acquired the rights from the songwriter and pays the writer a share of all monies collected) or its agent. Recording rights for most music publishers can be obtained from The Harry Fox Agency (212-370-5330; www.nmpa.org/hfa.html.) Synchronization licenses grant the right to record the musical work in time with visual images and are obtained from the music publisher. Information on the copyright owners of musical works is available from The Fox Agency, ASCAP (www.ascap.com) and BMI (www.bmi.com). If you use an existing recording (rather than hiring performers and creating your own recording) you will also need permission from the owner of the “sound recording”, typically the record label.
The federal copyright statute defines a public performance as one that occurs “in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” A public performance also occurs when the performance is transmitted by means of any device or process (for example via broadcast, telephone, wire, satellite, cable, internet, website or other means) to the public.
It is impossible for copyright owners to know of and try to license individually each performance of their works. Therefore, songwriters and music publishers authorize collective licensing organizations such as the American Society of Composers Authors and Publishers (ASCAP) to locate and license public performances of their works. ASCAP issues a performance licenses which grant music users the right to perform any or all of the millions of copyrighted musical works in ASCAP’s repertory as often as they like. ASCAP, which is owned by and managed for its songwriter, composer and music publisher members collects license fees and, after deducting operating expenses (less than 15%) distributes the fees as royalties to its members.
ASCAP licenses broadcast and satellite radio and several elements of the broadcast TV industry including the three major networks (ABC, CBS, NBC), the approximately 1,200 local commercial television stations, the Public Broadcasting System (PBS) and the low power television (LPTV) industry. ASCAP licenses over 150 types of businesses including restaurants, nightclubs, background music services (“MUZAK”) hotels, concert promoters, colleges & universities, websites and many more users of music. ASCAP also licenses cable programming services, PPV providers, satellite services and local cable operators.
While ASCAP licenses broadcasters, cable operators and cable services to perform publicly works in the ASCAP repertory, those license agreements do not authorize further public performances by those who receive television or cable television broadcasts such as bars and restaurants.
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