In a previous post we discussed how Performance Rights Organizations (or “PROs”) govern the ability for the general public to perform music owned by music artists, writers, publishers, and other rights holders. There is, however, a practical question: how does one actually secure proper licensing or ensure a given license fully covers that song’s use? Given that there are multiple PROs each holding licensing rights (even “fractional” rights) to songs (sometimes called “musical works”), the United States remains one of the most difficult music-licensing landscapes in the world. Enter Songview®—the new tool crafted by competitor PROs ASCAP and BMI to make your life as a proper licensee easier.
But first, a refresher. PROs such as the American Society of Composers, Authors, and Publishers (“ASCAP”), Broadcast Music, Inc. (“BMI”), the Society of European Stage Authors and Composers (“SESAC”)”, and Global Music Rights (“GMR”) exist to give music copyright holders the ability to easily license their music in “blanket licenses” to you, the consumer, for public performance purposes. These blanket licenses give licensees access to a PRO’s full catalog of musical works without having to procure individual licenses from each member of a PRO and without rights holders having to sell individual licenses to potential customers. The trouble comes with understanding the content catalog each PRO covers.
Basically, holding a blanket license with one PRO does not give you the ability to play music that is licensed by another PRO (e.g., if you hold a blanked license for ASCAP and want to play musical works licensed by both ASCAP and SESAC, you would have to secure blanket licensing from both PROs). Additionally, it is possible that some rights holders may switch their PRO membership, which means that some musical works may shift between PRO catalogs over time. This highlights the importance of diligence in ensuring that the musical works one plays are in compliance with any blanket licenses purchased, as the blanket licenses themselves do not specifically delineate which musical works are covered for public performance purposes—constant compliance checks must therefore be taken to avoid violation of copyright law.
As if this weren’t confusing enough, as mentioned briefly above, PROs only hold “fractional” rights to some musical works, meaning consumers may need to seek blanket licensing from multiple PROs in order to play a musical work that is “fractionally” available for licensing by more than one PRO. This is because many musical works are written by more than one co-writer or produced by more than one co-producer—each of whom own a fractional interest in the musical work, and each of whom may belong to a different PRO. Under traditional copyright law, any fractional rights holder to a musical work could freely license the entire musical work to a consumer without any co-owner’s permission (unless an agreement has been made to forbid such licensing)—the licensor would only need to account to the other co-owners for their shares of any royalties. The PROs, however, have argued before the Department of Justice (“DOJ”) that they can only license the rights their members have given them, and that they do not themselves have the right to license 100% of the musical works in their catalog. Although the DOJ concluded that fractional licensing was prohibited, the courts have since rejected this approach. Hence, the fractional licensing landscape remains, and consumers must ensure they procure blanket licensing from all applicable PROs in order to properly perform a licensed musical work.
Lucky for music consumers—ASCAP and BMI (who, by some estimates, own licensing rights to as much as 90% of the musical works performed in the United States) teamed up to create Songview, a tool to assist consumers in determining which works are covered by these two PROs’ catalogs. Songview’s search tools allow consumers to access detailed, aggregated copyright ownership data for more than 20 million musical works in the combined repertoires of both ASCAP and BMI, including a breakdown of shares owned by each PRO. Never before has this information been so accessible to consumers, as a consumer is now able to determine which PRO’s content catalog (likely both, due to fractional licensing) will best suit that consumer’s particular musical performance needs.
Due to the current fractional licensing landscape, consumers will need to be careful about what music they play publicly—even if they purchase a blanket license from one PRO—for many songs are owned by members of different PROs. Thus, it is always a good idea to avoid unintentional copyright infringement and procure licensing from each PRO, or at least from ASCAP, BMI, and SESAC. Although fractional licensing reigns, the licensing landscape is constantly shifting, and a ”full licensing” regime may take its successor’s place in the near future. Creedon PLLC is ever vigilant on this front, and we are here to assist you should you have any further question on this topic, or others related to the music and entertainment industry.
For more information on this article and this topic, contact Charles Wallace.