ASCAP/BMI help needed

Louis Schubert · From: Blue Ridge, GA, USA

I have a little studio here in my basement and a client of mine would like to do a CD of her child (who was a contestant on the World's Most Talented Kid show) which they could sell at her performances. The issue is the ASCAP/BMI royalties. How do I get information about how to set up this so that the songwriter gets a cut and we keep this all legal??

------------------
Louis Schubert
ShoBud Pro III D-10 / Nashville 400 -
Getting better

Miguel e Smith · From: Phoenix, AZ

You can go to www.bmi.com and www.ascap.com and research their datebase (if you need to) to get publisher info. Then you need to contact (or your client does)the publisher to obtain a 'mechanical license'. Many publishers will use a 3rd party company such as the Harry Fox Agency to do their licensing (www.harryfox.com).

BMI, ASCAP (or SESAC) royalties only come to play when a recorded work has been played on a medium such as radio, TV, cable, etc...and they do not license songs for mediums which will be sold (i.e. CD's). Your client will probably never have a reason to pay any monies to ASCAP or BMI. "Mechanical Licenses" are usually easy to obtain either direct from the publisher (especially if you know who it is) or from a licensing organization on the publishers' behalf. The fees are based on statutory rates (currently 8 cents per song) and your client may have to pay for a minimum number of CD's produced or distributed (many times it could be in the 500 to 1,000 units region unless this is a major label project).

The Harry Fox website can give you really all the info you need, but if you have questions, feel free to email me.

Mike P.S.; BMI, ASCAP and/or SESAC have absolutely nothing to do with obtaining the license necessary to release and sell this project on CD. When and if you got radio play, the radio station would have to account to BMI or ASCAP and not you or your client.

[This message was edited by Miguel e Smith on 21 September 2003 at 02:46 PM.]

Bryan Bradfield · From: Lethbridge, Alberta, Canada.

In Canada, we recently used CMRRA, who granted us the permissions and interacted with BMI & ASCAP on our behalf. Their web site provides information on what it costs to do small runs. http://www.cmrra.ca/default.html
These folks should be able to let you know who you can deal with in the USA.

Bryan Bradfield http://www.members.shaw.ca/DirtyHatBand/index.htm

Tom Olson · From: Spokane, WA

Mike,

Excellent explaination. So, Louis, as Mike has said, you only deal with BMI or ASCAP if you simply "play" the music such as if you transmit the song via radio broadcast or cable network, or if you play the recording at a disco or sporting event, or if your band plays the song in public, etc.

On the other hand, when you RECORD someone else's song (as opposed to just playing it), that's when you get a "mechanical license" and pay royalties either directly to the copyright owner or the copyright owner's designated agent (your choice -- although the latter is generally considered much less cumbersome) based on the number of copies of the recording sold.

However, Mike -- you raised an interesting question: in the event that Louis's client's recording was played on the air how do the copyright rules account for a split of the fee (if any) between the copyright owner of the song and the client who re-recorded the song? In other words, is Louis' client entitled to a portion of the BMI or ASCAP fee since it is his/her version of the song that is played?

[This message was edited by Tom Olson on 22 September 2003 at 08:34 AM.]

John Macy · From: Rockport TX/Denver CO

The ASCAP/BMI royalties are only for the writers of the song, whom they represent. Singers do not share in this unless they are the writer/co-writer...

Miguel e Smith · From: Phoenix, AZ

What John said.

How the PRO's (BMI, ASCAP & SESAC)distribute the collected royalties is equally between the songwriters and the publishers (i.e.; if the publisher received a check for $100, the writer will also receive a check for $100). Of course, if there are many publishers or writers, they receive their respective amounts.

Tony Prior · From: Charlotte NC

The simple answer is to record a CD you need the mechanical license for each song on the CD.

go to
http://www.nmpa.org/hfa/licensing.html

and it will all be right there..search for the song and acquire the license..it's that easy..

all ya need is a good credit card and a better idea of how many CD's you are going to distribute, 500 is the minimum at $40 plus a $2 licensing fee per song.

Remember though..you need the license to legally make the CD whether you give them away, sell em' or what ever..The license is for distribution which keeps you under the legal umbrella.

good luck

tp

[This message was edited by Tony Prior on 22 September 2003 at 01:08 PM.]

Tom Olson · From: Spokane, WA

John M. and Mike -- thanks for the info, but I'm still a bit confused. John, you said the BMI and ASCAP royalties are only for the writer. Mike you seem to say that the BMI and ASCAP royalties are for the writer AND the publisher.

My question would be based on the following scenario -- say a well-known artist records and releases a song he did not write. The song becomes a big hit and gets lots of airplay.

I understand that the writer would be due "broadcast" royalties from the airplay, but what about the artist (assuming he owns the copyright in the sound recording)? Wouldn't the artist also be due a share in the royalties from broadcast of the recording?

John Macy · From: Rockport TX/Denver CO

Sorry about the confusion--I was in a session and trying to write that while editing a vocal part. It is the writer and the publisher (which could be one in the same...).

The artist still gets no performance royalty from broadcast/performance if they are not the author or publisher, even though they may own the SR copyright.

Bill Crook · From: Goodlettsville, TN , Spending my kid's inheritance

Well........

Personally, I would say ......

To hell with BMI,IRAA and ASCAP !!!!

To me, It's just another way/time that the fatcats try to get into your pockets.

It's a shame that one cannot do a small CD job of his/her kid without some pukeface out in CA or New York wanting to get into the pockets of us,and all the time,haveing NO intentions of ever letting any monies trickle down to the folks that did the actual work.

If the Artist and side-men ever got paid as to what the fat-cats received,we all would be driveing BMW's and Caddilacs !!

Just take a look at one of the contracts. The way it's worded,the poor artist is in the hole for a ½ million bucks before the tour ever starts. Now, based upon this kind of thinking,Will the artist ever break even ????

From what I understand, there is a number value of CD's or pressings allowed by law before you have to consider it a major release and neeed to worry about lineing the pockets of those fat-cats !

If I made 40-50 copies of me playing some numbers,(which I purchased the back-up tracks of) to give to fiends/relatives,etc,etc,there ain't NO way I would pay BMI or ASCAP any coins. If there was some way I could be assured that the writer/artist/sidemen received a return for services rendered,I would have no problem with that,and pay the cost. But,that is not the case !!

BMI,ASCAP,RIAA..... You can all die and go to H@#$# !! I truely hope P2P and KaZaa is the ultimate down-fall of you.

O.K. .... Flame me if you wish.
Bottom line here is that if you check things out,you will notice that the P2P folks are winning !! Whatever the Fat-cats think.... My advice to you is :

It's over,Your days of screwing the artist/sidemen and consumer is OVER. You better find another line of work. Try used car selling. Thats the second most screwed-up line of business !!

You blood-suckers should take notice of what the movie folks are doing..... They relized that the public will pay a reasonable amount for a GOOD product at a reasonable cost..... You,haven't learned this. That is why you WILL go down in flames should you continue the way you are going.

The general public WIll cause the demise of you. The movie folks saw this earlier and adjusted their way of doing things. Hey, dipwads,, pay attention to them.. They are now makeing money again...., You are looseing money,friends and the support of your own artist and customers.

[This message was edited by Bill Crook on 25 September 2003 at 11:32 AM.]

John Macy · From: Rockport TX/Denver CO

And while we're at it, let's just go whup those lousy ASCAP and BMI songwriters asses for ever thinking they might be able to make a living writing songs. What a bunch of chumps...

Miguel e Smith · From: Phoenix, AZ

Wow…so let me get this straight…I’m a sideman and sometimes artist but I’m also an owner of an ASCAP and a BMI company so what…does that mean I’m one of those bloodsucking Fat-cats who takes unfair advantage of little girls? (oh wait...and myself).

No, I’m not going to flame you Bill. You have a right to your opinion even if it may be based on the fear of something that probably doesn’t even affect your life directly. I drive neither a Cady or a BMW but if I had the cash flow to support it I probably would (and there would be something wrong with that because…..?).

Let’s look at it this way… if you recorded one of my songs and released, let’s say 500 units, the total license would cost you $40. If you gave away 200 but sold the other 300 for even $10 each and it cost you $2.00 each in production costs, you’re still up $1,960. Who comes closer to the Cady now, you with the nearly $2,000 or me with the $40? Plus, if I owned the song but didn’t write it, my part would be $20 and the writers part would be $20. Oh yeah, deduct the cost of my making the demo ($350). Now it looks like I’m only in the hole $330 (well…not counting the copyright, lead sheet fee or legal fees to draw up the songwriters contracts).

The ironic part is that in all of the scenarios involving making a product (the little CD by a kid, the contracts for an artist or Bill’s 40-50 copy project, neither ASCAP or BMI come to play whatsoever regarding collecting monies. They make nothing…zero…zip. We’re talking “mechanical licenses”. ASCAP, BMI (and the little mentioned SESAC) are all “Performance Rights Organizations” and they deal with “performance licensing”, a completely different monkey.

Ah well, I better get back to the drawing board to figure out how to screw consumers in a new way now that the public is on to my blood sucking ways. Louis, sorry we’ve all used your post to banter facts and myths.

Dipwad Mike

Bill Crook · From: Goodlettsville, TN , Spending my kid's inheritance

Look at it this way...........

Based upon BMI's and ASCAPP's way of thinking, Every time I get into my car (which I paid $27,000+ for) I should pay the GM corp a fee. Every time I turn on a light in my home,($126,000, at $960.42 a month) I should pay Mr.Edison's family a fee. Well,, lets go a tad more into this, When-ever you get a glass of water from your source,you are (by law) required to pay me a a fee. Why???? Because I developed the major system that controls the water plant that cleans the scum-pond water that you drink !! So far, I haven't received that first pennny from anyone. (other than the weekly,small pay check I receive from the Goverment system that I worked for)

Should I expect a fee from every person that drinks water since 1985 ??? NO... because I got paid (a weekly paycheck) to do what I do for a liveing. I don't expect ASCAPP,BMI, or others to pay me every time they benefit from my genius work and makeing the world a safer place for you to live in.

I,too,have been into recording shops. I was paid a fee to do the job. I knew that it was a session,and that I would not be paid fees by everyone that sung or played the song/number. I didn't expect it. I was paid to do a specific work and thats it !!

If ASCAPP,BMI,RIAA were really doing their job,(that is, lookin' after the artist,sideman,and others in the field) we wouldn't be in the situation we see going on now.

I'm NOT upset with the artist and others that are trying to make a decent liveing in the music area,only the people (are you hearing this,BMI,ASCAPP,RIAA)that think they should receive a fee every time a person thinks about playing a CD,singing a song,or what ever.

I really think every American (and those that arn't here as legal folks) should pay the folks/families that drew up the Constitution a fee each and every day they live,so the relatives of the drafters of the 1776 works can live high on the hog at my and your expence.

Does anyone here see where this could go ????

The G#$%^^& B@#$^&, (BMI,ASCAPP,RIAA) are attempting to sponge off the hard work of others in order to help them-selfs to the hi-life and such at the labors of the expense of the "Working Man".

Really, at this point,I feel that this post(due to my views) should be closed and I apolize (to you,Louis Schubert)that it got so out of hand...

Bill Crook

[This message was edited by Bill Crook on 26 September 2003 at 06:53 AM.]

John Macy · From: Rockport TX/Denver CO

quote

"I'm NOT upset with the artist and others that are trying to make a decent liveing in the music area,only the people (are you hearing this,BMI,ASCAPP,RIAA)that think they should receive a fee every time a person thinks about playing a CD,singing a song,or what ever."

The only problem with that is the songwriters themselves have signed on with ASCAP and BMI (both nonprofit organizations) to collect these fees for them. They did not come out of the blue, and none of these fees go to the record companies--only the writers and publishers.

And it's real easy--if you don't want to pay the songwriters--record your own tunes. No one's forcing anyone to record a licensed song.

As for the water scenario, do you think your water company would be OK with me downloading the work you did for them and incorporating it into another water system somewhere else for free? Or how about I just siphon off a water tap from your clean supply and use it, or worse yet, share it or even sell it for a profit???

[This message was edited by John Macy on 26 September 2003 at 09:23 AM.]

Miguel e Smith · From: Phoenix, AZ

Bill,

Look, every person on this planet who has an issue, justified or not, will point fingers at someone or something and say that's the reason things are not going well in this way or another. It’s human nature. However, in this situation, I've taken my position because I personally don't believe you have all the facts straight concerning this issue. As a publisher/writer myself and affiliated with both BMI and ASCAP, I have to assume that you consider me one of those people who are sponging off someone else’s hard work. You obviously respect the artists out there who are, in your words, “…trying to make a decent living…”. If I’m wrong please correct me, but it seems that you take the viewpoint that songwriters/publishers and those working on their behalf are striving to make a non-decent living? You ask “Does anyone here see where this could go???” and yes I think I can see the downside. If enough folks shared your inaccurate view, this situation could lead to some really nasty stuff being done to writers and publishers. I just don't see reason.

But I’m not without respect for your right to your opinions. However, I challenge you to convince all of us of the validity of your views. No, don’t just blast us with all these curses and condemnations, but provide all of us with the details and facts that you believe support your views. What are your concepts and details about a more fair way to compensate songwriters and publishers? If you had the power to control every aspect of this, what would you do?

After listening to every negative word you have said about these organizations and people, and the fact that it includes me personally, I’m simply asking you to qualify your remarks. I’ve done the same already with mine and would be happy to do so again and again. If you’re not just standing on a soap box preaching to the choir, then enlighten us with your wisdom. If you can convince me that the facts and truths that I presently believe in are false, then I’ll gladly say you’re right. What do you say?

Mike

Tom Olson · From: Spokane, WA

Bill,

With all due respect, I would like to also address your comments --

It appears from what you've said above, that you feel the situation with regard to royalty payments for copyright owners is somehow unfair. It also appears (again with due respect to you) that you may be a bit misinformed about the actual situation.

Regarding the GM analogy -- when you purchase a car, you own the car and you can do what you wish with it. However, a person can never "own" a piece of music unless that person owns the copyright for that piece of music.

Regarding Mr. Edison -- if this were 100 years or so ago, and Mr. Edison's patents were still unexpired, you WOULD be paying a fee to Mr. Edison every time you turned on your lights.

Regarding the water plant analogy -- if you had received a patent on your water plant developments, then you WOULD be entitled to a fee every time somebody built/used the system. However, apparently, you did not apply for a patent and/or you signed an agreement (or impliedly assented to an agreement) to assign any interest in any developments you make to the agency you work for. If you had not worked for that government agency, would you still have made those developments?

My point is that the rules are there for everyone to see if they want. That is, the rules are provided by the government regarding intellectual property for everyone to see. So, anyone who wants to try to benefit from the rules is free to do so. If you choose not to try to benefit from the rules then that's OK too -- it's your choice.

BMI, ASCAP etc. are playing by the rules that are there for everyone. Anyone can join the game and try to make a buck under the rules if they want to and anyone who tries to do this is treated equally under the rules.

Regarding session work, session players are generally paid a fixed fee to play on a recording because that's the way the producer (or whoever else is in charge) chooses to do it. If you want to try to play session work for a royalty fee, you're free to do so if you can find a producer willing to go that route.

But, the function of BMI, ASCAP etc. isn't to lookout for artists, session players, sidemen etc. etc.

Instead, the job of BMI, ASCAP etc. is to do whatever the people who hire them tell them to do. The "fatcats" (as you call them) who hire BMI ASCAP et al. hire them to collect royalty fees for the music the "fatcats" own, and which royalty payments are provided for under federal law. Moreover, a good part of the royalty payments collected by BMI ASCAP etc. are agreed to by both parties. Nobody is ripping anyone off.

The bottom line is -- whatever is being paid to copyright owners, "fatcats", sidemen, session players, artists, floor sweepers, and everyone else remotely involved in the music business, is in accordance with one or more of at least two basic governing criteria: 1) supply and demand; and/or 2) the government regulations.

That is, session men, artists, fat cats, and floor sweepers are getting paid a certain amount because either: A) that's the amount they agreed to work for; or B) that's the amount of royalty due to them under the law and anyone else is free to make that amount of royalty under the law as well (all you've got to do is either write a hit song or buy the rights to one).

So, I guess when all is said and done, I'm a little confused as to exactly what you (apparently) find unfair about the situation.

[This message was edited by Tom Olson on 26 September 2003 at 06:13 PM.]

Tom Olson · From: Spokane, WA

Mike and John -- sorry to keep harping on this, but I'm still confused about my original question. I've gone back and read the appropriate sections of Title 17 U.S.C. and it's my understanding from that, that the copyright owner of the music is entitled to radio performance royalties, while the copyright owner of the sound recording is not (except in the case of digital subscription broadcasts). The copyright owner of the music could be anyone, including the writer and/or the publisher etc. etc., but not necessarily the writer or the publisher.

So, my question would be -- when you say the writer and the publisher get the performance royalties do you really mean "the copyright owner of the music" (which in some cases actually might not be either the writer or the publisher)?

[This message was edited by Tom Olson on 26 September 2003 at 08:22 PM.]

Miguel e Smith · From: Phoenix, AZ

The publisher is traditionally the copyright owner, however it’s common that the writer is also the publisher/copyright owner as well. When a song is registered with the PRO’s, the information includes the publisher or publishers and their respective share in the ‘publishing rights’ which are many times considered the ‘copyright’ itself. But, it’s also possible to be a working publisher and receive the publisher’s share without actually owning the copyright itself. Not something that I would recommend as normal operating procedure but there are situations in which that is the way it is (i.e.; Publisher A owns the copyright itself but assigns portions of the royalties to Publisher B for arranging for the song to be recorded by a big artist on Sony). So long as a publisher(s) are listed on the Clearance Forms of the PRO’s, that is who will be paid that portion of the royalties. That info can and will change with ownership or assignment changes.
The writer or writers information is also listed and their respective share of the ‘writers rights’. The writers rights will total 100% and the publishers rights will total 100%.
When 100% of the collected royalties are dispersed, that amount is equally split between the writer(s) and the publisher(s). It’s then gets a bit confusing because when it’s split, then each of the splits are considered a whole unto themselves.

Tom Olson · From: Spokane, WA

Hey Mike! -- I'm assuming that when you say the royalties are split between the writer and the publisher, that is stictly the result of either some sort of contractual agreement entered into by the writer and publisher OR it's in the instance where both the writer and publisher have some sort of legal rights in the copyright. Is this correct? The reason for that assumption is because, again, according to copyright law, the copyright OWNER has exclusive rights in controlling the performance of the music (e.g. the right to collect broadcast royalties).

The law makes no mention of writer's rights or publisher's rights, or whatever -- only copyright owner's rights. So, for example, if the publisher is the copyright owner and the writer is not the copyright owner, then under copyright law the writer has no rights -- and vice versa.

So, what are "writer's rights?" Maybe something that arises purely out of a contract and not the copyright law? Also, perhaps the writer/publisher split of the fee is something that arises out of the PRO relationship? That is, perhaps the situation you mention is only in cases where the writer retains copyright ownership and then assigns royalties to the publisher in the PRO agreement? (sort of like the publisher A and publisher B example you gave, but between writer and publisher). Just a guess. I'm still trying to reconcile in my mind how the writer/publisher split fits in with how the copyright law actually reads.

[This message was edited by Tom Olson on 26 September 2003 at 11:36 PM.]

Bill Crook · From: Goodlettsville, TN , Spending my kid's inheritance

Due to my stepping on the toes of others I end my part to this thread..... I also apolize to Louis Schubert for stealing his original thread.

My thoughts and such are (I think) are reflected in another thread..
http://steelguitarforum.com/Forum10/HTML/003331.html

Miguel e Smith · From: Phoenix, AZ

Tom,

In what I’ll call a typical songwriter/publisher relationship (and assuming the writer is not also the publisher), there is a contractual agreement between them. In this scenario the publisher (copyright owner) has complete control over where and how the copyright is exploited and the freedom to sell or otherwise assign the copyright to another. Again, under a typical songwriter/publisher relationship, the writer receives 50% of all royalties (mechanical, performance, sync, etc…). The normal difference is in the accounting. For mechanicals, the publisher (or a third party such as The Harry Fox Agency, Copyright Management, etc…) will account directly to the writer for royalties received by the publisher. Performance royalties are collected by BMI, ASCAP and SESAC and then they distribute according to whatever info is listed in the filed Clearance Forms (usually filled out by the publisher).
I’m not qualified to interpret the letter of copyright law, but the “writers rights” typically refer to what the industry recognizes as the writer being the unchangeable creator of the musical work and therefore always due a fair compensation from proceeds derived from exploitation of that same work. Have publisher/copyright owners ever abused the ‘control’? Yes, and litigation is the normal action to follow. A typical “songwriters agreement” with the publisher will detail the means and percentages by which a writer is compensated in the event of income being generated. But, this usual does include details about how and when the writer receives compensation from the PRO’s. ASCAP, BMI and SESAC always consider income to be equally split between writer and publisher. Anything to the contrary would have to be in the “songwriters agreement” and is only seen in rare cases perhaps where the writer is receiving such a huge amount of advance against royalties that the publisher wishes to recoup from more sources than just mechanical (the writers’ portion of mechanical royalties is the traditional area the publisher can recoup writers’ expenses…i.e.. advances, aka “draws”, demo costs, promotion fees, etc…).
In general, the publisher is considered the marketing and sometimes administrative portion of the relationship, or the ‘business end’. The writers portion is then considered, of course, the ‘creative end’. The typical scenarios above are accepted as being a good and fair working relationship between the two.

Miguel e Smith · From: Phoenix, AZ

Bill,

The thread you referred to seems to speak generally of file sharing, labels that don't pay up to artists & musicians and of the confusion industry wide. I saw one mention of Socan (a PRO in Canada) never paying one writer for works he said have been recorded for quite a while now.

Confusion is a good word for all of this and when confusion is the word of the day, it's all too easy to point fingers. Now, I'm not saying that labels are famous for paying correct royalties to those due when they are due....no, actually they are infamous for not being accurate. But, again, my issue is still that you seem to be blaming the songwriters and publishers for that as well. In the case of sales, the songwriters and publishers are those at risk of not getting paid just like the artist. Every few years, the Harry Fox Agency will conduct an audit on my companies behalf with one label or another. You'd be surprised how much was not paid when it should have been (and how much would never have been mentioned otherwise).

If any songwriter/publisher has done their paperwork correctly and registered their works with any PRO and their song is performed, for example, on the radio. It is that radio stations responsibility to account to that PRO (i.e., ASCAP, BMI). In turn, the writer/publisher should get paid. Do some small markets account correctly...or at all....nope.

Is file sharing hurting the sales of product such as CD's...of course it is (it's not the only thing). Is there an easy remedy that will make everyone happy...not yet.

What I'm suggesting is that we don't compound the problem by blindly pointing the blame at, say...songwriters and publishers. I still don't see the basis for that.

Respectfully,

Mike

Tom Olson · From: Spokane, WA

Hey Mike -- thanks for that added explanation. I think I'm beginning to see at least an inkling of how things work. That is, I gather from mulling over what you've said that the standard procedure is for the writer to in some way assign the music copyright to the publisher and then for the various parties to enter into some sort of an agreement as to how to distribute the royalties due on the copyright. As in most other cases of business arrangments, I guess this procedure probably evolved because it is the most efficient way to do things on a practical level.

Miguel e Smith · From: Phoenix, AZ

Yes, you’ve got it. Many times in the past when I was about to enter into an agreement with a writer in an exclusive manner, I would purchase several of their pre-existing songs via a ‘transfer of copyright’ form. Then, there was normally a quota of songs required of the writer during the term of the agreement (1 to 3 years and maybe 15 to 18 songs a year…equivilent of 100% songs) and it was agreed upon that the publisher would own those copyrights (or the portions of that writer’s contribution). If this same writer co-wrote with someone else all the time, his/her half would have to be considered in making the quota (i.e.; 18 solo written songs, 36 fifty percent written songs, etc…) In the common case where there are several writers, each with a different publisher, there are that many publishers as well. I have some songs that I only own/control 25% or so and even some that I own/control 100% of but they were written by writers from both ASCAP and BMI (a writer can only be affiliated with one PRO at a time) and I have, for example, one writers’ share in our BMI company and the others in our ASCAP company.

erik · Posted 27 Sep 2003 1:40 pm

How many people can write 15-18 songs a year? Were any of them good?

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