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A new Chief Copyright Royalty Judge of the Copyright Royalty Board has just been named by the Librarian of Congress.  According to the Press Release announcing his appointment, David Shaw will fill that position after having previously served as an administrative law judge on the International Trade Commission for over 10 years.  There, he heard complex cases dealing with detailed financial matters – experience that sounds relevant to the kinds of cases he will be deciding on the CRB.  The Copyright Royalty Judges decide cases determining the marketplace value of music when  setting royalty rates, and that look at the relative value of programming when deciding the distribution of cable royalties to program copyright holders.  In addition to ITC experience, Shaw was a judge at the Social Security Administration and, according to his biography, worked in the General Counsel’s office at NPR early in his career.  With the appointment of this new Chief Judge, we thought that it would be worth looking at some of the specific areas in which the CRB makes decisions that affect media companies.

The CRB is principally charged with rates and distributions for copyrights governed by a “statutory licenses.”  A statutory license is created by Congress when it is believed that individual negotiations between copyright holders and copyright users would either be unduly complex so as to be almost unworkable or where an efficient market would not otherwise exist.  Essentially, the statutory license means that the copyright owner must license the work that they own – they cannot restrict its use – if the user pays the royalties set by law or established by the CRB and abides by the conditions for use set out in the law.  See our article here about music statutory licenses and our articles here and here on some of the issues with the TV statutory licenses.  The conditions of use are often carefully restricted so as to only cover very specific uses under the statutory license (see our article here on the conditions placed on the use of music under the statutory license for webcasting – the public performance right for sound recordings used by noninteractive services discussed below).Continue Reading New Copyright Royalty Board Chief Judge Named – Looking at the Issues Considered by the CRB of Importance to Media Companies

In 2019, the Antitrust Division of the US Department of Justice began a review of the court-administered antitrust consent decrees that have bound ASCAP and BMI since the 1940s.  We wrote about the issues in their review here.  The formal review of these decrees began as part of the DOJ’s broader review of its antitrust consent decrees covering many different industries.  The DOJ received almost a thousand comments on the questions that it asked about the ASCAP and BMI decrees.  It also held public roundtables as well as private discussions with interested parties during its review.  Last week, Makan Delrahim, the outgoing head of the Antitrust Division, presented remarks at a Vanderbilt Law School virtual event where he said that the review would be ending without any proposals for reform.  While the statement notes some of the reforms that were sought by the music industry, it also notes that music users around the country rely on the systems established under the decrees and judge them to be working well.  Mr. Delrahim’s statement says that because of the complexity of the issues and the interruptions caused by the pandemic, no reforms would be offered at this time, but it urged the DOJ to continue to review these decrees on a regular basis – at least once every five years.

This action is significant for broadcasters and other music users as it leaves in place these consent decrees that are the basis on which so many businesses use music in their day-to-day operations.  Given the volume of music they have under license, most businesses do not have an alternative to using the blanket licenses offered by these organizations.  The only alternative would be to license the music themselves which, due to the complexity of the copyright laws and the lack of transparency in music ownership, would be exceedingly difficult for a business where music is but a secondary component to their operations.  Together, ASCAP and BMI provide a license to broadcasters and other music users (including any business that performs music to the public, such as bars and restaurants, retail stores, digital music services, concert venues, hotels and so many other locations).
Continue Reading DOJ Ends its Review of ASCAP and BMI Consent Decrees – For Now…What Does it Mean?

It was news earlier this week when a company that promotes poker was sued by one of the major record labels and publishing companies for the use of music in podcasts without permission. As we have written before (see, for instance, our articles here and here), the use of music in podcasts requires a license from the copyright holder of both the musical composition and the recorded performance of the music (usually, for popular music, a publishing company and a record label). In this case, one of the first we’ve seen against a podcaster for infringement of a copyright holder’s music rights (though we have heard of other situations where cease and desist letters were sent to podcasters, or where demand letters from copyright holders resulted in negotiated settlements), Universal Music alleges that the podcast company used its music and refused to negotiate a license despite repeated attempts by the music company to get the podcaster to do so. Thus, the lawsuit was filed.

As we have pointed out before, a broadcaster or other media company that has performance licenses from ASCAP, BMI, SESAC and even GMR does not get the right to podcast music – nor do the SoundExchange royalty payments cover podcasts. These organizations all collect for the public performance of music. While podcasts may require a performance license (see our article here about how Alexa and other smart speakers are making the need for such licenses more apparent as more and more podcast listening is occurring through streaming rather than downloads), they also require rights to reproduction and distribution of the copyrighted songs and the right to make derivative works – all rights given to copyright owners under the Copyright Act. These rights are not covered by the public performance licenses which only give the rights to make performances to the public. What is the difference between these rights?
Continue Reading Podcaster Sued for Copyright Infringement for Using Music without Permission – Remember ASCAP, BMI and SESAC Licenses Don’t Cover All the Rights Needed for Podcasting

Last week, after passage by both chambers of Congress and signature by the President, the ‘‘Orrin G. Hatch–Bob Goodlatte Music Modernization Act’’ became law. The law underwent a few changes on its journey to approval, adding new provisions in the Senate to those which we summarized here upon its initial passage by the House. The Act retained its same principal purposes. The driving force behind the Act was the desire to simplify the payment of “mechanical royalties” by digital music services for the reproduction and distribution of the millions of musical compositions that they use in the songs that they serve up to more and more consumers across the country. That simplification was accomplished through the creation of a new collective through which these royalties will be paid – essentially a one-stop shop where the statutory royalty will be paid. The collective will have the responsibility for finding the copyright holders and songwriters who share in the royalties – removing the need for the music services to have to identify and pay all of the appropriate rightsholders, a process that has resulted in legal claims for hundreds of millions of dollars against these services for not being able to find all the parties who are supposed to be paid for the mechanical royalties.

The general layout of the system for dealing with the payment of these royalties, through a collective to be established, remains essentially the same as in the initial House Bill. Other provisions were added in the Senate (and then approved again by the House) dealing with matters including pre-1972 sound recordings, Sirius-XM royalties, and the ability of existing music organizations to continue to do direct licenses for mechanical and other rights outside the new statutory system. We may write about those issues later. But the Senate addition likely to have the most significance for the most music users was one having nothing to do with mechanical royalties, but instead with the performance royalty for music works (musical compositions) that is paid by music services, radio stations, bars and restaurants and any other location that plays music that is heard by the public at large. The new language added by the Senate requires that, before the Department of Justice recommends any changes to the consent decrees governing ASCAP and BMI, the DOJ must first notify Congress of any changes that it will be suggesting to the courts that administer the decrees, so that Congress can decide if it wants to take action to block or modify any such changes. Why is that significant?
Continue Reading Music Modernization Act Becomes Law – Mechanical Rights To Become Easier Just As Performance Rights May Become More Difficult

The week before last, we summarized the provisions of the Music Modernization Act as passed by the House of Representatives. The Senate is now poised to take up this legislation in a hearing scheduled by the Senate Judiciary Committee for next Tuesday, May 15. The legislation proposes, among other things, to set up a SoundExchange-like collective for the collection and payment of mechanical royalties due under Section 115 of the Copyright Act and to create a digital public performance right in pre-1972 sound recordings (ending some of the litigation that has arisen in recent years on that issue). Our summary provides more details on these issues and highlights some of the other issues addressed by this bill.

The consideration of the bill by the Judiciary Committee is the next step to the bill becoming a law. The hearing will feature representatives of several groups directly affected by the legislation – including David Israelite, the CEO of the National Music Publishers Association (NMPA represents publishing companies that usually hold the copyrights to musical compositions); Chris Harrison, the CEO of the Digital Media Association (DiMA represents digital music services like Spotify, Pandora and Apple Music); and Mitch Glazier, the President of the Recording Industry Association of America (RIAA represents the major record labels who usually own the copyrights to the sound recordings – the compositions as recorded by particular performers). Members of DiMA and the RIAA pay mechanical royalties. Members of NMPA collect those royalties. Thus, these groups are directly affected by the Music Modernization Act. Songwriters and performers, including Motown legend Smokey Robinson, will also testify at the hearing. A full list of the participants can be found on the Judiciary Committee’s website, where video of the hearing will also be available next week.
Continue Reading Senate to Hold Hearing on May 15 on Music Modernization Act

The Canadian performance rights society SOCAN (essentially the Canadian version of ASCAP, BMI and SESAC) has announced the purchase of Audiam, a private company that specialized in representing composers trying to maximize their music rights collections – both for performance rights and mechanical royalties – worldwide. Audiam also claims to provide a comprehensive database of rightsholders to both musical compositions and sound recordings – a valuable commodity in and of itself, as there is no uniform public registry for such rights. This follows SOCAN’s purchase of MediaNet, a company that specializes in obtaining clearances for music (including sound or master recordings – the musical compositions that SOCAN has traditionally licensed as recorded by a particular singer or band) so as to provide those rights to digital music stores or services, eliminating the need for these services to separately negotiate terms with sound recording performance rights holders. This consolidation under one roof of public performance and mechanical rights to musical compositions, along with rights to sound recordings, promises at some point in the future, a one-stop shop where music users (including digital music services like Spotify or Deezer, and perhaps even smaller music users like podcasters) can obtain all the rights that they need to use music in their businesses.

This same goal seems to be the motivation behind SESAC’s acquisition in recent years of the Harry Fox Agency (which also handles mechanical licensing – the rights to make reproductions of musical compositions needed for downloads and even on-demand streams) and Rumblefish, a digital service providing clearances for the use of sound recordings in videos, commercials and for other purposes. This same drive to consolidate music licensing services was also, to some degree, behind the push for revisions to the ASCAP and BMI antitrust consent decrees, as ASCAP and BMI wanted the clear right to license mechanical rights as well as the public performance rights they now provide. Even the publisher withdrawals from ASCAP and BMI by major publishing companies that are affiliated with major record labels may have had similar ideas behind them as some have speculated that these major music companies could bundle the licensing of sound recordings and musical compositions (see our article here where we made the same observation).
Continue Reading SOCAN Buys Audiam – The Consolidation and Fragmentation of Music Rights – What Does it Mean for Music Services?

The Good Wife is not usually where one turns for serious discussions of music copyright issues (nor is Stephen Colbert’s Christmas special where we found copyright issues discussed several years ago).  But I was surprised to find this Sunday that the principal plot line of The Good Wife was focused on a music rights dispute.  After watching, I wondered how many people in the show’s audience had any idea of what the legal issues being discussed were really all about.  In fact, copyright law, as confusing as it can sometimes be, is an unusual topic for a plot line on a TV show.  It is not as universally understandable as is a criminal trial, a custody case or some civil suit for damages.  In fact, as we’ve written before, the complexity of copyright law makes compliance difficult even for those involved in the industry.  The Good Wife episode itself made that complexity a comedic point throughout the program, as even the musicians involved in the plot line several times remarked that they, too, were clueless as to the rights issues involved in this fictional case.  But, with a couple of days to reflect on the program, I thought that it might be worth expounding on some of the copyright issues involved, as they illustrate some of the rights that are included in the copyrights to every piece of music.

As we have written before, what makes copyrights in music so confusing is that there are several copyright holders in each recorded song, and each copyright holder has different rights, often administered by different organizations.  We write much about the public performance rights in sound recordings (usually payable to SoundExchange by noninteractive digital music services, and to the record companies by interactive services) and in musical compositions (usually payable to ASCAP, BMI and SESAC, though some large publishing companies have started to pull their catalogs from these organizations to license directly).  But The Good Wife did not deal with the public performance right, but instead with other rights in music.  The two rights principally dealt with were the right to authorize the making of a reproduction (often referred to as a “mechanical right“) and the right to make a derivative work.  The first is the right of the copyright holder to authorize others to use their compositions or recordings to make copies.  In the TV case, the issue involved the rights held by the writer of the song to authorize others to make cover versions of that song and to reproduce those versions (e.g. through CDs, downloads or other digital reproductions).  The right to make a derivative work is the right that the copyright holder has to authorize others to take parts of the original work but to make more than cursory changes to that work, e.g., keeping the melody and changing the words, or as in the TV case, keeping the words but changing the melody (in the TV case, taking a rap song and giving it a real pop song melody). 
Continue Reading Learning Copyright Law from TV’s The Good Wife – Compulsory Licenses, Derivitive Works and Parody and Fair Use

Broadcasters beware – podcasts with music may be dangerous to your economic health.  In recent weeks, I’ve come upon more than one incident where a broadcaster was providing podcasts containing music on their website, or allowing listeners to download or stream on-demand some new, hot song.  I’ve even seen certain articles in the trade press advocating that stations do podcasts of their morning shows, or otherwise provide some sort of programming containing music on their websites in a manner in which the listener can listen over and over again to the same program or song.  Broadcasters need to know that they are asking for trouble when they provide services like podcasts, downloads and on-demand streams containing music without getting specific permission from copyright holders to do so, as these uses are not covered by the SoundExchange royalties paid for webcasting, nor (in most cases) by your ASCAP, BMI and SESAC royalties.  

The royalties paid to SoundExchange are for the right to publicly perform sound recordings in a noninteractive manner.  In other words, they only cover streams where the user cannot get a specific song when they want it, and where listeners do not know the order in which songs will be played.  ASCAP, BMI and SESAC (the "PROs") also cover public performances, but of the underlying musical compositions (the words and music of the song, as opposed to its recording by a particular singer or band).  By contrast, “podcasts,” ( and here I mean an on-demand program that can be downloaded onto a digital device for later replay, and which can also usually be played immediately on someone’s computer) are much like downloads – and involve a different right in music – the right to reproduce and distribute the music.  The rights of reproduction and distribution are different from the public performance right, and the permission to make reproductions and distributions are granted by different groups than are the public performance right.  SoundExchange and the PROs have nothing to do with granting this reproduction and distribution right (with the limited exception of ephemeral rights in streaming granted through the SoundExchange royalty – a concept too technical to be discussed here, and one that does not affect this warning.  But, if you are interested in these rights, you can see our article that discussed ephemeral rights in a bit more detail, here).  Podcasts, downloads and on-demand streams require a specific grant of rights from the copyright holders of the sound recordings and the musical compositions for each piece of music that is being used. Continue Reading Beware – Music Use in Podcasts, Downloads and On-Demand Streams are Not Covered By Your SoundExchange Royalties

Just when Internet music companies were starting to understand one set of royalties applicable to the use of music on the Internet through the controversy over the Copyright Royalty board decision on royalties for the public performance of sound recordings in a digital delivery system, the Copyright Office held a hearing on Friday to discuss an entirely different royalty – the "mechanical" royalty for the use of the "musical work" in making a "phonorecord."  In plain English, the copyright holder in the publishing rights in a musical composition (the underlying words and music in a song) is entitled to a royalty when a copy of a song using that composition is made.  While that doesn’t sound too complicated, when copies are made in the digital transmission of music over the Internet (and even in other digital media), all sorts of questions arise.  And in the conversations on Friday, questions were raised as to whether the obligation to pay a royalty for making a digital copy even applied to the streaming of a song on the Internet or possibly even the playing of a song on an HD Radio station.  These stations already pay (to ASCAP, BMI and SESAC) for the public performance of a musical composition, but the mechanical royalty is for a different right, and is collected by a different group, and the question being raised was whether a different royalty is also due when music is used a digital context.  This is also different than the SoundExchange royalty that is paid for the public performance of a sound recording (a particular song as recorded by a particular artist).

The Copyright Office held this Roundtable to update the record in a proceeding begun by a Notice of Inquiry issued in 2001 to try to determine how to apply in a digital world the mechanical royalty and the compulsory license for that royalty under Section 115 of the Copyright Act.  That section applies to the use of a composition in the making of a record or CD.  The artist or record company would have to pay the publishing company a flat fee per copy to obtain the rights to use the underlying song.  That fee is currently about 9 cents per copy, though the Copyright Royalty Board is is in the midst of a proceeding that is to determine whether that royalty should be changed.  When applied to the making of a physical copy, that concept is not hard to understand (though, as set forth below, it is not easy to administer).  But, in a digital world, questions arise as to when the obligation to pay a royalty arises.Continue Reading Copyright Office Holds a Roundtable Discussion of the Mechanical Royalty – Another Confusing Royalty for the Use of Music on the Internet