History and Development of Music Performance Rights

October 31, 1995

Throughout history, the musician has been considered an artist -- an extraordinary being, capable of impressive feats of expression. For Plato, the artist possessed the power of divine inspiration, having left reason behind and entered an altered state of consciousness. For Aristotle, the artist served as a conduit for creative expression, channeling art through his soul during the creative process. For Kant, the artist was a genius, possessing considerable imagination, and that imagination was the source of originality.

Today, originality enables artists to copyright their expressive works, and legislative enactments have increased the range of artists' rights. Under the U.S. Copyright Act of 1976, federal copyright protection is provided when an artistic work is created and first fixed in a copy or recording. Often, registration is necessary to sue for copyright infringement. Infringement occurs when a newer work is found to be substantially similar to an older one.1 In cases involving new technologies, infringement is difficult to determine. Although legislation is continually being proposed and enacted, new technologies are emerging faster than the laws needed to regulate their use.

The need for new legislation brings new issues and complex cases to the courtroom. Legislators are continually seeking new avenues of copyright protection. In its Green Paper, the Working Group on Intellectual Property made recommendations to amend the U.S. Copyright Act to accommodate technological developments affecting the presentation and distribution of artistic works.2 SiMilarly, the Universal Copyright Convention, the Berne Convention, and the General Agreement on Tariffs and Trade are among the international laws that seek to protect artists' rights across national boundaries. Many of these treaties strive to build uniformity and reciprocity among the nations, creating a single standard through a process known as harmonization.

In Europe, artists are provided with droit moral ("moral right") to protect their personal expressions. Although the U.S. has applied moral rights principle, such rights are sometimes waived in the interest of bringing "better" works into the marketplace. Thus, in Italian Book Co., Inc. v. Rossi,3 a Sicilian sailor who subconsciously embellished an old song was permitted to maintain a copyright for his rendition of another's work. However, moral rights may cause economic concerns, as when rock star George Michael was found in breach of contract for refusing to uphold a sex symbol image that sells records.4

Just as performing artists may be bound by recording contracts, artists may be limited by work-made-for-hire agreements involving commissioned works or works created within the scope of one's employment. Workmade-forhire agreements require the author/artist to relinquish the work's copyright, unless a contract indicates otherwise. The work-made-for-hire philosophy persists, with Congress reluctant to compensate musicians for sales of digital sound recordings.

Nevertheless, there are instances in which artists are rewarded for their works. Such rewards create incentives to produce new creations. In an effort to provide such incentives, the artistic world created royalties. Royalties enable composers and other copyright owners to receive a fee or a percentage of the revenues when a licensed work is presented to the public through a performance or transmission. Licensing agreements became available to broadcasting organizations and to others who were interested in obtaining performance rights, the right to perform publicly a copyrighted work.

Thus, a symbiotic relationship was created between the artist and the consumer, and licensing organizations served as the vehicle for this exchange.

Performing rights organizations provide a less expensive and more efficient way for writers and publishers to locate and license music users. Without such organizations, music users would have difficulty keeping track of thousands of copyright owners and negotiating individual licenses to authorize the performance of each copyrighted work.

In the United States, the American Society of Composers, Authors and Publishers (ASCAP, estab. 1914) is the largest nonprofit licensing organization. As the radio industry expanded, ASCAP demanded larger royalty payments based on a percentage of gross revenues. Faced with ASCAP's price-fixing and a 75% monopoly in the music licensing industry, radio broadcasting organizations refused to negotiate with ASCAP and, in 1939, organized their own private corporation, Broadcast Music, Inc., (BMI).

In 1941 the Justice Department commenced an antitrust action against ASCAP. For nearly a year no ASCAP music was heard on the radio. The case ended and the music resumed when ASCAP consented to a decree prohibiting any exclusive licensing rights in radio broadcasting. In 1948 the decree was expanded to prevent pricefixing in television and motion picture industries, and BMI, whose revenues grew to about 65% of ASCAP's, agreed to operate under the decree.

Under ASCAP agreements, songwriters and publishers sign identical contracts; under BMI agreements, writers and publishers sign long-term contracts of varying length. Both ASCAP and BMI provide quarterly domestic royalty payments and biannual foreign royalty payments to writers and publishers, each party receiving 50% of the royalties. Payments are determined by musical category and the frequency oftime during which the song is broadcast or publicly performed.

ASCAP allows broadcasting stations to have either a blanket or a per program license. In a blanket license, a percentage is paid on all receipts from the sale of "time on the air"; in a program license, stations pay for only those programs in which music in ASCAP's repertory is performed. ASCAP determines revenues through a formula that combines average and accumulated earnings with seniority.

There is also SESAC, a privately owned organization, originally called the Society of European State Authors and Composers. Though small, SESAC is growing rapidly; some persons believe it may pose a competitive threat to others in the music licensing industry.

Countries throughout the world have their own performing rights organizations. For instance, Canadian public performance rights in music are protected by the Composers, Authors and Publishers Association of Canada, Ltd. (CAPAC) in Ontario and by the Performing Rights Organization of Canada, Limited (PROCAN) in Toronto. In addition, two Quebec-based organizations, the Societe du Droit de Reproduction des Auteurs, Compositeurs et Editeurs au Canada (SODRAC) and the Union des Scrivains Quebecois, provide mechanical licenses.

In addition to compulsory licenses provided through performing organizations, inmost countries a mechanical license is required to reproduce or to distribute musical recordings. In the U.S., synchronization licenses maybe negotiated and administered privately by a composer or by an agent. Section 115 of the U.S. Copyright Act protects the rights to reproduction and distribution of musical works. Similar productions are available under other national laws.

In the U.S., "performance right" for performers is not explicitly provided for in copyright laws or statutes. Rather, the concept finds its way into common law or judge-made law as established through court decisions. In Haring v. WDAS Broadcasting Station, Inc.,5 Judge Stern stated:

A musical composition in itself is an incomplete work; it is the performer who must consummate the work by transforming it into sound. If, in so doing, he contributes by his interpretation something of novel intellectual or artistic value, he has undoubtedly participated in the creation of a product in which he is entitled to a right of property, which in no way overlaps or duplicates that of the author in the musical composition.

Courts did not initially support performance rights in sound recordings, but this trend changed.6 Also, performers' rights prevailed in right of publicity cases. For instance, in Zacchini v. Scripps-Howard Broadcasting Station Inc.,' the "performer" was a "human cannonball" whose variety act had been recorded and performed on television against his will. In holding that the performer had the exclusive right of publicity, the court described the act as "the product of [his] own talents and energy, the result of much time, effort, and expense."

While courts are not always quick to reward artists and performers for their efforts, cases like Zacchini demonstrate that if a "human cannonball" can protect his work, so can we. As we propel ourselves into the future, let us consider not only the obstacles that we face as musicians, but also the opportunities. By building a better understanding of ourselves, society, and our legal system, may we be better equipped to rise to the new challenges that we encounter in the musical world.

Author's Note. The information provided in this essay is strictly educational and is not to be construed as legal advice.

1Gaste v. Kaiserman. 863 F.2d 1061 (2d Cir.1088), finding that the composer of the popular song Feelings had copied the plaintiffs composition.

2lntellectual Property and the National lnformation Infrastructure: A Preliminary Draft of the Report of the Working Group of Intellectual Property Rights (Green Paper), July 1994.

327 F.2d 1014 (S.D.N.Y. 1928).

4Panayiotou and Others v. Sony Music Entertainment (UK) Ltd., 13 Tr. L. 532 (1994).

5327 Pa. 433, 194 A. 631 (1937).

6See Metropolitan Opera Assn. v. Wagner-NicholsR ecorder Corporation, 199Misc.786, 101 N.Y.S.2 483 (Sup. Ct. 1950), aff'd per curiam, 280 A/D/ 632. 1-8 N.Y.S.2d 795 (1951), restraining the distribution of unauthorized opera broadcasts.

7433 U.S. 562 (1977).

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