The Stephen Colbert Christmas Special begins with Colbert sitting at the piano, writing new Christmas songs. Why? He explains that, while he likes all of the old Christmas songs well enough, he’d only get royalties if he wrote the songs, so he’s writing his own. In a few sentences, Colbert explains the system of broadcast royalties in the United States, and the source of the dispute over the broadcast performance royalty that took up much committee time in the last Congress, and is bound to return in the next Congress in 2009. As Colbert explains, in the US, the composers get paid when their music is played on a broadcast station. These payments come from the the royalties that broadcast stations pay to ASCAP, BMI and SESAC, the performing rights organizations or "PROs" that represent the composers or the music publishing companies that hold the copyrights to those songs. But, as Colbert points out, the performers do not get paid when they sing the song on the air.
We’ve written about the controversy about whether or not performers should get a royalty when a song that they perform but did not write, is played on the air. But Colbert seems to have solved the problem about the performer not getting royalties when their songs are played on the air – simply by writing his own songs. And maybe we’ll be singing these songs at future Christmas parties, paying Colbert royalties, and at the same time explaining broadcast performance royalties to future generations.
One last note – Colbert’s program is, of course, on cable not broadcast stations. Cable, like broadcast, pays royalties only to the composer, and not the performer of music. Currently, only digital services like Internet and satellite radio pay royalties to performers for the "sound recording." But even digital services don’t pay performance royalties for "audio-visual performances," for instance when a song is included as background to a television program, or otherwise included in a program like the Colbert Christmas special. Why? Usually, it is because the producer of the program has already paid for the master recording license to include the song in the video program in the first instance. Of course, synch rights have been paid to the composer for inclusion of the composition in the program, yet they still get a their public performance royalty. So one wonders if the performance royalty is imposed on broadcast radio for the public performance of music, if broadcast and cable television isn’t next. But that’s an issue to be dealt with after the holidays.