They Can’t Take That Away From Me

Fall 2003


They can’t take that away from me. This classic Gershwin song finds itself in an ironic place during the opening days of my presidency. It seems that “they” will try and perhaps succeed in taking “that” away. Members of the SCL, along with Nancy Gershwin, with the aid of the Los Angeles Conservancy are currently attempting to save the Ira and George Gershwin house, where this song was written, from demolition in Beverly Hills.

Concomitantly, the issue of performing rights and whether “they” will take those away from you has presented itself as of late. This isn’t anything new, but it is an issue that is so germane to our livelihood that it is worth revisiting on a continuum. Although the following may have some interest to the seasoned veterans among us, this article is primarily directed to those in our membership that are new to performing rights.

When I began composing in the mid-seventies, I was successful in procuring a job on a hit cartoon series. The fact was, that I was thrilled to be composing anything for money and when the deal was presented and it specifically excluded the payment of performing royalties didn’t think too much about it. That was around 1976. Recently I was contacted by an SCL member who was faced with a similar dilemma. It would have been hypocritical of me not to tell him the choice I had made many years ago. However, what I also told him, and wanted to share with you, are some of my experiences in the years since that decision.

Looking at my July statement from my performing rights organization, I see that I am collecting money from the shows that I am currently composing music for such as Seventh Heaven and 8 Simple Rules for Dating my Teenage Daughter. For those of you just getting started, there is separate money paid for theme, underscore and feature performance usage. The amount that is distributed on these performances is based on several factors such as duration, time of day, and sometimes, less understood, the size of the network. I.e. Nickelodeon would pay substantially less than NBC, for an example. The SCL will be having seminars to explain these nuances and representatives from the various performing rights groups are always available to talk you through the specifics as well. The important thing to understand is that this is a separate stream of income from your fee for composing songs or score for an episode or show.

Money is generated from a number of sources. Initially it is collected on current episodes.Seventh Heaven plays on the WB Network, and the money is distributed nine months after it airs. The lag time is due to the clerical time in collecting cue sheet information and the work associated with logging it. Money is also distributed on rerun or syndication play. In my case, Seventh Heaven was played on KTLA, channel five, here in Los Angeles for two years and now it runs exclusively on ABC Family, who has been airing the show twice daily since last September. Additionally, the show is playing in a number of foreign countries. These performances also generate income.

Now this may or may not be any revelation. However, what I couldn’t fathom twenty-five years ago concerns other items I find on my statement. My first credited show, composed in 1978 with Howard Pearl, theme by Fox and Gimbel, Angie, recently came out of mothballs and played on TVLand. That means for work I did a quarter of a century ago, I still am receiving income. The series, Bosom Buddies, which introduced a young Tom Hanks, was gone in thirty episodes. However, as Hanks’ career began to flourish, the show reappeared in syndication and is there every time I open my performance statement. Now that series played in 1980-81.

I was contacted by my friend, Gayle Maffeo in the late 80’s about an up and coming comic. My partner, Howard Pearl and I were less than enthusiastic about this entertainer’s abusive and raunchy style, but were happy to be working with Gayle again. The comic ended up being Roseanne Barr and the series, Roseanne, has been playing consistently and generating income for more than fifteen years in network, syndication, cable and foreign markets.

This brings me to my point. There is no way that anyone can put a price tag on your performance income. If a company is offering buyouts of your performing rights, it is referred to as a direct license. Accepting a sum of money that may appeal to you because of your present situation in life will, in my opinion, be a shortsighted and ill-conceived decision in most cases. To reiterate, this is not your creative fee. It is your performing rights fee, not paid by the employer but collected and paid to you here in the United States by BMI, SESAC, or ASCAP depending on your affiliation. It would be misleading to say that all shows will become Roseanne or Bosom Buddies, however, I would submit that in my own experience, a significant percentage of my shows have had a life down the line.

There’s a larger picture here. Following a Broadway performance, Victor Herbert walked into a restaurant where a pianist was playing his songs. The year was 1914 and he was outraged that his music could be exploited without his permission and without being properly compensated for it. The same year, Mr. Herbert and a visionary group of composers and lyricists formed ASCAP. To this day, we as a community are compensated for our creative contributions in the form of performance royalties. As Arthur Hamilton states later in this publication, “those are writers’ rights, and they are sacrosanct, inviolate, off-limits, non-transferable.”

At the risk of sounding melodramatic, an entity that would ask you, as a creator, to sign away your rights is starting a wildfire. It can either be stopped at the source or, given room to build; it could eventually overtake the community–our community. The situation, left unchecked, could lead to an environment that soon would affect all of us. Soon there would be writers who not only give away their performing rights, but who would accept less and less to create music. We cannot let this happen. On an individual basis, I want to see that you are generating income twenty-five years from now, in 2028, on material that you are writing today. On a more universal scale you owe it to your colleagues and to the memory of Victor Herbert to say, They Can’t Take That Away From Me.

Published in The Score Quarterly newsletter [Vol. XVIII, Number Three, Fall 2003]