[Fmpro] ASCAP language

[Mark Northam]

On 4/30/08 8:34 AM, "andrew feazelle" <andrew.feazelle at gte.net> wrote:

> Part 7(a) of ASCAP's weighting rules says (and i'm paraphrasing to focus the
> subject matter) "A vocal performance shall be presumed to be a feature
> performance, UNLESS such performace is not a principal focus of audience
> attention."   
> 
> The rule specifically stipulates that a vocal performance should not be
> weighted as a feature performance, unless it is the principal focus of
> audience attention.

Good point, Andrew, however the good folks at ASCAP anticipated this
objection - when the Brabec letter went out some years ago admitting that
ASCAP had been paying all background vocals on TV within shows as features
by default, the letter said that based on their "experience", songs are
always a principal focus of audience attention, hence the reclassification
and 500% pay increase over a one-minute score cue within the same show, etc.
Interesting to see this letter go out very quickly after we ran a front-page
story about the policy in Film Music Magazine.

So by creating the policy that all background vocals are now considered by
default a principal focus of audience attention, that enables them to pay
them at feature rates automatically without violating any other policies,
from their point of view.

Other tricky language that enables this - per the weighting rules:

"A visual instrumental or vocal performance shall be presumed to be a
feature performance unless such performance is as a theme or a jingle or in
conjunction with an advertising, promotional or public service announcement
or logo or is not a principal focus of audience attention."
Source: ASCAP Distribution Resource Documents
http:// www.ascap.com/reference/drd_rev062905.pdf

Note how the language is very carefully crafted to include 2 types of
performances: "visual instrumental" performances and "vocal performances"  -
note that while instrumental performances are limited to "visual" types,
vocal performances include ALL vocal performances, including background. Had
the word "visual" been included before "vocal performances", I wonder how
many people's lives would be different today, especially composers - it's
amazing how a few words can affect the distribution of hundreds of millions
of dollars every year...

Mark Northam

P.S. This policy was confirmed again later by ASCAP Sr VP of Legal Affairs
Richard Reimer in testimony quoted here:
http://www.ascap.com/reference/boardofreview_meyers.pdf

"Mr. Reimer, on behalf of ASCAP, conceded that when ASCAP receives cue
sheets containing the designation ³background vocal² it presumes that such
work contains lyrics and should receive feature credit."
(top of page 6)

And the circle is complete:

Music has lyrics = principal focus of audience attention = feature = $$$$$$$