ASCAP Changes Tune on Lawyer’s Statement to Court in Myers Case

By • June 10, 2005

LOS ANGELES (Film Music Magazine) — In the latest legal moves in the long-running case brought by veteran television composer Peter Myers (“Diagnosis: Murder,” “The Love Boat,” “Dynasty”) against performing rights society ASCAP, an ASCAP spokesman says its Los Angeles lawyer Kurt Fritz “misspoke” during oral arguments before the California Appeals Court on May 27 when he said that the disputed works written by Myers “are background vocals according to ASCAP’s rules.”

The statement in court by ASCAP’s attorney supported Myers’ claim that his music which contained live performances by vocalist Sally Stephens, should have been properly classified as “background vocal” by ASCAP. Instead, ASCAP has argued for years that even though the music contains a live vocalist performing, Myers is only entitled to “background instrumental” classification.

The classification difference can have a huge effect on a member’s royalties, as ASCAP slaps an 84% penalty on “background instrumental” music as compared to “background vocal” for a one minute cue as used in film or television. This penalty is seen by some in the industry as a massive subsidy for songwriters at the expense of instrumental composers, who compose the vast majority of music used within film and television programs. According to broadcasters, who pay license fees to ASCAP for the use of their members’ music in public performances on television and elsewhere, no such payment differences are made when payments are remitted to ASCAP.

HEAR THE AUDIO: Official audio transcript of the May 27, 2005 hearing as provided by the California State Appeals Court:

ASCAP’s Attorney Kurt Fritz (Streaming MP3 – 1 min. 20 secs)

Complete Oral Arguments re: Myers v. ASCAP (Streaming MP3 – 20 min.)

Immediately after the hearing on May 27, both Kurt Fritz and ASCAP’s Richard Reimer were asked by Film Music Magazine about Fritz’s statement to the Court that Myers’ works were considered background vocals according to ASCAP’s rules. At the time, neither attorney would comment on the statement, and did not indicate that the statement was incorrect.

ASCAP’s Phil Crosland issued the following statement to Film Music Magazine after being sent audio of Fritz’s statement in court:

“I can assure you that ASCAP has not changed its position with respect to the crediting of Mr. Myers’s works. Our position — now affirmed by the ASCAP Board of Review, an independent panel of three arbitrators, U.S. District Judge William C. Conner, the U.S. Second Circuit Court of Appeals, the United States Supreme Court, and a California trial court — remains that the performances at issue, despite their vocal element, were properly classified as ‘background instrumental’ and credited by ASCAP as ‘background. Listening to the transcript of Mr. Fritz’s remarks during the argument before the California appellate court on May 27, it is clear that he simply misspoke. There is no need for Mr. Fritz to correct his misstatement — the record before the California appellate court includes the decisions of the ASCAP Board of Review, the arbitration panel and Judge Conner, all of which clearly state ASCAP’s position.”

Attorney Alan Cyrlin who represents Peter Myers stated, “Because the appeal is still under consideration by the Court, it would not be appropriate for me to make a public comment while the case is under consideration.”

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