In May, ASCAP arranged for a group of composers and songwriters to walk the halls of Congress and express their views on a number of topics that are germane to the creative community. I was proud to be a member of this contingent that included many esteemed writers and also encompassed a wide spectrum of music creators who came from districts across the country to speak to their individual Congressional members. There were several issues at stake that will be dealt with in pending or potential legislation. Among these were the imbalance of trade with China and the fact that we are not being paid for our works when they are performed there. This imbalance is taking a significant toll on a potential income stream for creators. We, along with artists, are calling for a tax deduction for charitable works. Currently, living artists and other creators can only deduct the cost of supplies, rather than their fair market value. Proposed legislation would correct this inequality.
Although these issues will have an impact on our creative lives, the most significant issue for our community concerns the existence of a performing right in an audiovisual download. ASCAP, BMI and SESAC along with a hand full of other groups, including the SCL, have joined hands in proposing legislation that would guarantee such a right, and have made that a priority in the 111th Congress.
Currently, there exists an ambiguity in the copyright law as to the existence of a performance right in the download of audiovisual works. This issue and its consequence was front and center as we met with over forty senators and representatives, focusing on members of the Judiciary Committee. We met with members of Congress with such disparate politics and ideologies as Senator Lamar Alexander, Senator Orrin Hatch, Representative Howard Berman and Senator Diane Feinstein. The over-all goal was to speak to the issue of fairness as we attempted to clarify a sometimes-oblique matter of copyright to legislators who sit on committees concomitantly dealing with issues such as health care and national security.
One of our primary concerns is stressing that as the delivery of our works for the visual media are changed over time, we are duly compensated, or to coin a term by Ray Colcord, that the compensation effected by this delivery should be “technologically neutral.” As in my case with the current television series The Secret Life of the American Teenager, many of your works are made available within hours for downloading on the Internet. It is an undeniable fact that content delivery is transitioning from broadcast and cable to online platforms and from there to digital downloads. As evidenced by information released in recent Writer’s Guild and SAG negotiations, there is reason to believe that within a few years all or most of television content will be delivered exclusively in this fashion.
Due to a 2007 decision in ASCAP’s rate court litigation with AOL, YAHOO, and Real Networks in the Southern District Court of New York, the performing right in a download is in jeopardy. The late Judge Conner, who oversaw ASCAP’s amended consent decree, rendered this decision. The judge, many of whose rulings in ASCAP matters over the past 35 years were beneficial to the creative world, ruled that a download of a musical work did not implicate a performing right, because the downloaded transmission of the work was not “simultaneously perceptible” by the end user. That decision is on appeal to the United States Court of Appeals for the Second
Circuit, with the SCL submitting an amicus curiae brief on ASCAP’s behalf. Although this decision did not specifically address downloading of audiovisual works, our adversaries in license negotiations with the PROs are citing this ruling in their efforts to avoid paying appropriate performance fees.
Inherent in the plight of the composer or songwriter for audiovisual works are certain realities, many of which are misunderstood. Our opponents include the Digital Media Association, Tech America, the Consumer Electronics Association, the National Association of Recording Merchandisers, the Entertainment Merchants Association, the Net Coalition and the Internet Commerce Coalition. Of course, their motivation is simple; the companies they represent are very happy to exploit and profit from our work, but don’t want to pay public performance license fees for doing so. Unfortunately, we are in a transitional time that could allow for loopholes that could have dire consequences for our future.
Our opponents continue to argue vociferously that these rights that we are calling for are unfounded, and that in fact, we are trying to “double dip.” The misinformation being disseminated is great and our performing rights organizations are true champions in the battle. The fact is, we don’t receive domestic mechanical royalties and if our performing rights income were in jeopardy, we would in effect have a “zero dip” as Richard Bellis is quick to point out. The fact is, we haven’t made bad deals with the studios; it is one of the realties of signing work-for-hire contracts that the only right that we are afforded is that of the performing right. With the “up front” creative fees at an all time low in no small part because the studios argue that our compensation comes from the so-called “back end” this right is certainly one that must be fought for at all cost. Also of major concern to us is the foreign income that we receive as our works are performed around the globe. Most nations with strong copyright law recognize this right and if we are not able to obtain similar rights here in the US, the foreign societies could cut off that valuable income stream from our works performed overseas.
Walking the halls for the first time was an enlightening experience for me. I had the good fortune of being teamed with insightful and articulate minds such as Hal David, Roger Faxon and Jimmy Webb. We will continue to make our voices heard as the issue of performing rights in a download plays itself out. No doubt other issues will soon present themselves that will continue to challenge our way of making a living. Foremost, our activities in Washington will strive to illuminate the significant role that your unique contributions play in enhancing the lives of people throughout the world.
Published in THE SCORE quarterly newsletter [Vol. XXIV, Number Three, Fall 2009]