[Fmpro] Downloadable Royalties

[Mark Northam]

Hi Claude -

Well, ASCAP says that downloads of audiovisual programs (film/TV) represent
performances too, but that's all anyone can seem to get them to say about
it. Are they collecting performance royalties from iTunes? They won't say.
What are their plans in this area? Silence.

But here are some facts to consider:

1. ASCAP is largely controlled by songwriters, and perhaps even more by
their publishers. BMI is controlled by broadcasters, who in the case of
score music, are often publishers as well.

2. Songwriters generally have no problems with mechanical royalties since
their contracts with their publishers allow for these to be paid, and are
generally paid through the publishers since there are no large "Mechanical
Rights Organizations" in the US (ala ASCAP/BMI/SESAC Performing Rights
Organizations). Are the songwriters getting mechanicals from music downloads
from iTunes? You bet. Are composers getting mechanicals from TV/Film
downloads on iTunes, Nope.

3. To make matters worse, most film/TV composer agreements do not permit the
composers to collect mechanical royalties, other than on soundtrack album
deals. Publishers get to "keep" these royalties, and certainly have no want
to pay them to composers as it would hurt their profit margins.

It's easy to see why the publishers, who enjoy being able to collect and
account for (ie take deductions from) mechanicals want to keep things the
way they are in that regard, and have no wish to have ASCAP and BMI enabled
to collect and pay mechanicals direct to writers. That way composers might
actually get paid mechanicals from Film/TV downloads, and that would
represent losses for the publishers vs. the current system. And companies do
not like losses. 

No wonder ASCAP's secret "Unilicense" proposal to some online services last
year offered to let the publishers handle ALL royalties on "pure music"
downloads. There is no doubt the publishers want to handle and control these
transactions, and frankly that may not be good news for writers.

As far as composers go, the guys around here in the 1980s who rolled over
when the studios decided in the early 1980s to stop paying mechanicals for
videotape sales (yes, composers used to get these in the late 1970s and
early 1980s!) and fight this are the ones we can thank for the horrible
precedent that has been set that denies score composers mechanicals on
videotape, DVD, and now downloadable audiovisual product sales. Thanks,
guys. Your backbone and courage on this matter is something we can all
celebrate. Interestingly, some of these same guys are the ones defending
ASCAP and BMI's outrageous policies about how song and score are paid. They
must be getting some pretty big "special payment" checks to warrant
attacking their own the way they have.  It's almost laughable to watch some
composers "defending" 20 cents on the dollar for a one minute cue compared
to a minute of song, as if there is some unwritten law that composers' music
is worth less than all songs, and anyone who dares think otherwise is a
heretic.

We now have the daunting task of undoing what was done in the early 1980s
plus 25 years of precedent of composers not receiving mechanical royalties
on videotape/DVD sales. And do you see any of the established composer
groups kicking and screaming about this? Nope. Just silence, nice social
events, and lots and lots of backroom deals for themselves, I suspect.

Anyway, that's the picture, and it continues today. Composers who are afraid
to complain about getting paid 20 cents on the dollar by ASCAP for a one
minute cue compared to a minute of song - ie, most composers, are only the
latest symptom of an industry that apparently is afraid of its own shadow.

Until we can gather the collective strength and courage to start demanding
fair treatment in the area of performance royalties, what hope do we have of
getting better mechanical royalty treatment? Until composers stop hanging
out the equivalent of a sign that says, "Screw me, I'm a composer and write
second class music", we can sit back and watch the industry go through
another 10 years of sticking it to composers, declining composer fees, and
outrageous royalty distribution rules that are diverting huge amounts of
money away from composers and into the hands of the songwriters and
lyricists.

Frankly today's generation of composers may be so conditioned to "thank"
ASCAP and BMI for whatever royalties they get, that they are unable to
comprehend or believe the facts about how unfair the current system is. We
may have to wait and look to the next generation of composers who isn't so
afraid of sticking up for their own right and who isn't afraid to publicly
call something wrong that they know in their hearts is wrong to actually do
something about the current royalty mess.  That is, unless the next
generation never learns about mechanical royalties, or perhaps there won't
even be any more royalties the way we think of them. Or maybe ASCAP and
their "song is king, everything else is second class" mantra will permeate
the industry so deeply that the next generation of composers won't know (or
more importantly, think) that this is nothing more than an economic myth
perpetuated by an aging bunch of songwriters, designed with the singular
purpose of diverting massive amounts of money away from those who actually
write the most music on television and in films. But who can blame them? The
system they've designed has profited them handsomely, and we can expect them
to fight tooth and nail to "protect" the discriminatory systems (aka "usage
weightings", no digital watermarking to track score, etc) they're so proud
of that has been paying them so well.

Sorry for the long essay today... But either way, inaction, apathy, and fear
has created the situation we now have to live with, and unless composers
stop letting these emotions run their professional lives when it comes to
royalty income, we can hardly expect things to get better. We must reject
the politics of discrimination and exclusion, and Friends, it's time for
action.

Best,

Mark Northam


On 7/13/06 9:17 AM, "Claude Castonguay" <c.castonguay at videotron.ca> wrote:

> Once again, what happens to our rights(money) when everybody  will be
> listening  to Lost or 24 on their iPods? Is this a performance or a
> mechanical?

---------------------------------
Mark Northam - Publisher
Film Music Magazine
The Professional Voice of Music for Film & TV
http://www.filmmusicmag.com
1-800-774-3700 x702 / (310) 645-9000 x702