The Beginning of the End of Performance Royalties for Film & TV Music?

By • September 8, 2006

While the move to on-demand, downloadable film and television shows is great news for consumers, I’m afraid it may be the beginning of the end of the performing right for audiovisual works (that is, films and television shows) in favor of a mechanical-rights-dominated on-demand system as the world moves towards on-demand delivery of audiovisual products (films and television shows).

As a quick matter of definition, “mechanical” royalties are royalties paid when a copy of a work is sold, such as when a DVD of a film is sold or downloaded legally. It represents at transfer of a copy of a film, rather than a transmission. Generally composers don’t receive the writers’ share of these royalties when copies of films or TV shows are sold either in physical form such as on videotape or DVDs or in digital form such as legal film/TV downloads (see later in this post for more on this) and that has created a real problem in the industry.

At ASCAP, publishers wield more power than writers – that’s clear enough. And if TV and film downloads remain 100% mechanical royalties as they apparently are now, all those monies will be paid to the publishers and unless the composers have a mechanical royalties clause for audiovisual works in their agreements (most composers do not, or they’d be getting royalties on DVD sales), the publishers get to “keep” what would have been the writers’ share. This represents a huge windfall for the publishers, and it’s surely not something they want to give up any time soon.

Let’s not forget that in the late 1970s and the early 1980s, composers used to receive mechanical royalties from videotape sales of films. In the early 1980s the studios decided to stop paying these to composers, and sadly, composers accepted this. Whatever composer organization was around in those days – likely the early Society of Composers and Lyricists (SCL) or its predecessor the Composers and Lyricists Guild of LA (CLGA) – apparently decided these royalties weren’t important enough to fight hard for – a tragic mistake that established one of the most dangerous and costly precedents composers face in the business market – no royalties on videotape or DVD sales, and now, no royalties on film and television downloads. Even when I moved to Los Angeles in the early 1990s, film and television music seminars would preach “don’t worry about the mechanicals.” Don’t worry, indeed…

iTtunes now delivers over one million videos per week as downloads and offers episodes of over 200 television shows as downloads. No performance royalties to composers for these downloads, folks. And I sure don’t hear much coming from ASCAP and BMI about trying to get any royalties for these. Of course, as viewers migrate to downloads, the traditional broadcast license fees will go down, and that means composer royalties will go down. And if you don’t think this migration is happening, check out the iTV from Apple which goes on sale next year, designed to allow consumers to download movies from iTunes and watch them on their home televisions.

Remember – the publishers only have to lose if the royalties for downloads are anything less than 100% mechanical, since they’d have to split any part of the royalty deemed a performance royalty with the writers. So clearly, the publishers – the ones who have the most clout at ASCAP and the ones whose broadcasting arms own BMI – want to see things stay exactly as they are – 100% mechanical royalties for downloads, no performing rights for downloads.

The infamous Unilicense Proposal (click to view) proposed by ASCAP, BMI and the publishers proposed EXACTLY THIS for “pure music” downloads. No performance royalties on music-only downloads – these downloads would be treated as 100% mechanical. With this kind of proposal being made by ASCAP, BMi and the publishers, how can composers or their representatives expect to be able to argue for performance royalties on audiovisual downloads when ASCAP and BMI have already proposed “no performance royalties” on music-only downloads?

This situation vividly demonstrates the dangerous conflict of interest at ASCAP these days – if ASCAP were to succeed in establishing performing rights in downloads, that would likely come out of the publishers’ pockets, and they don’t want to see that happen. What profit-oriented business would? So ASCAP says they represents writers AND publishers, but it’s fairly clear whose agenda is being served, at least in the area of Film & TV downloads. The last ASCAP Writer Board Member I asked about this subject became very quiet, very quickly.

What do we as composers need to do?

1. Join together in a new Guild to leverage our collective strength. That guild be completely independent and should not accept financial support, handouts, etc from ASCAP, BMI or any other entity that composers must negotiate with.

2. Join an existing organization or form a new mechanical rights organization and demand that mechanical royalties language be added to composer contracts so the writers share of mechanical royalties for audiovisual downloads isn’t captured by the publishers.

It will take courage and guts to stand up for our rights, but most composers seem to be waiting for “someone else” to do this, hoping to ride the coattails without getting their hands “dirty”. I wonder how many more rights we as composers have to lose before more will get involved in trying to make this industry a better place to work.

Comments

By Andrew Poole Todd on November 17th, 2009 at 11:48 pm

How could we let this happen! Because most of us composers suck with the legal stuff, we better unionize. We need the union, even if it’s just for hiring a bunch of lawyers. Someone has got to do it, and it probably won’t happen without the support and funding from a union.

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