Royalties Are a Good Thing—Part 2: Performance Rights, Sync Rights, Patents and Trademarks

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Royalties Are a Good Thing—Part 2: Performance Rights, Sync Rights, Patents and Trademarks.

In 1897 an amendment to the copyright law provided that any person performing a dramatic or musical composition without the consent of the copyright owner would be liable for damages and potential criminal misdemeanor charges.ⁱ Prior to this, copyright protection was limited to printed music. This amendment was obviously well-received by composers and publishers, but without a mechanism to collect royalties it was practically unenforceable, since it is obviously impossible for a copyright holder to be everyplace his or her music is performed. But Europe provided a model.
Nearly 50 years prior to the 1897 U.S. amendment, a society was created in France, in 1851, to license and collect royalties on non-dramatic public performances of its works. In the U.S., Giacomo Puccini (1858-1924) proved to be a catalyst. When, in 1910, he discovered that this country had no performance rights organizations, he began a conversation with his publisher that eventually resulted in the establishment of the American Society of Composers, Authors and Publishers (ASCAP)ⁱⁱ in 1914. Early members included Irving Berlin, Victor Herbert, Jerome Kern and John Philip Sousa, the most popular songwriters of the day.
In addition to ASCAP, two other performance rights organizations (PRO) are active in the United States. Recognizing that ASCAP had a virtual monopoly on performance rights, Broadcast Music, Inc. (BMI)ⁱⁱⁱ was established in 1940 by radio executives who decided to create their own PRO and therefore pay themselves performance royalties instead of ASCAP. A third player in the field is SESAC (Society for European Stage Authors and Composers).^iv It is privately owned and is much smaller than the other two organizations, but as it says on its website it prides itself in its ability to create individual relationships with the composers and publishers it represents. Apparently its small size is attractive to some artists, since it is not without big names on it roster. Bob Dylan, Justin Timberlake, Beyonce, Garth Brooks, Eric Clapton and Luciano Pavarotti are all represented by them.
Individuals can only be a member of one PRO at a time and they can join as a writer (composer) and/or a publisher. Deciding which one to sign up with can be difficult, since the information they put forth is often not directly comparable to each other. Here is some information to get you started. But you’ll have to do your own research from this point forward.
ASCAP—ASCAP is member owned. It is the largest of the three. There is an application processing fee of $25, but there are no annual dues. To become an ASCAP writer member, you must have written or co-written a musical composition or a song that has been:

•commercially recorded (CD, record, tape, etc.); or,

•performed publicly in any venue licensable by ASCAP (club, live concert, symphonic concert or recital venue, college or university, etc.); or,
•performed in any audio visual or electronic medium (film, television, radio, Internet, cable, pay-per-view, etc.); or,

•published and made available for sale or rental.

BMI—As stated on their website, “If you’re a songwriter or composer and have written songs that have the potential to be used on radio, television, the Internet, in restaurants and or any of the thousands of other businesses that use music, you’ve come to the right place.” There is no application fee, and as you can see the entry bar is very low.
SESAC—As stated on their website, “Unlike the other performing rights organizations, SESAC has a selective process by which to affiliate songwriters and publishers, resulting in affiliates who have personal relationships with the SESAC staff. The company’s creative staff works with songwriters to develop and perfect their talents. SESAC takes pride in a roster based on quality rather than quantity. Submissions are reviewed by SESAC’s Writer/Publisher Relations staff.”
So we have these three PROs in the U.S. If you are a copyright holder how do you get your money? It’s complicated. The royalties come from restaurants, casinos, nightclubs, concert halls, radio, and television stations—virtually any venue where music is played or broadcast. When you sign up with a PRO you give them permission to collect your performance royalties, but these agencies can’t be everyplace music is played anymore than an individual can. Knowing that, ASCAP, for example, uses a system of blanket licenses. The blanket license basically says, “For this year go ahead and play all the music that we license. You don’t have to fill out any forms. Use as much as you want and for that privilege we will charge you a yearly fee.” This is called a blanket license, and ASCAP has over 170 different licenses of this type. The fee is determined using weighting formulas that bring into consideration demographics, market size, ticket prices, seating of the room, number of hours music is played, etc. The cost of the license will vary according to the amount of music being played and people receiving it. The New York Philharmonic will pay ASCAP more than the Colorado Springs Symphony. A jazz club in Chicago will pay more that a restaurant in South Bend.
In addition to the blanket license, ASCAP also has field agents who monitor newspapers and radio noting when and where music is being played. New venues can expect a visit from ASCAP if music is being played there. ASCAP lawyers are understandably experts in this area of the law, and local bar owners are no match for them. Refusal to pay for a license can result in a lawsuit with penalties and legal fees much higher than the license itself.
To the uninitiated this can sound like a mob shakedown for having music in your establishment! Just remember, as stated earlier in this section of the book, the basic point is that the U.S. constitution provides that if you create a piece of music it is yours, and you have the right to be compensated if others use it.
Synchronization Rights
The term, “synchronization rights” had its genesis in the early days of film when music was first synchronized with movies. It is still used today and over time has been expanded to include a myriad of other audiovisual productions that have been invented since the “talkies.” “If you are using a copyrighted piece of music (music owned by another) and if you are making a reproduction of that music in connection with the following, you must get permission to use the composition from the copyright owner:”^v

•Commercials
•Karaoke
•Television Programs

•Motion Pictures
•Theatrical Productions
•Music Boxes
•Corporate Videos
•Samples
•CD’s / Cassettes
•Adaptations
•Computer Software
•Parodies
•Printed Sheet Music
•Internet

Just listen to the music on television for one hour. There is a good chance that you will recognize a “standard tune” or two. Currently, I have been noticing a jewelry commercial on the air playing, “It Had To Be You,” in the background. In order for the producer of that “jingle” (read: commercial) to use the music, he had to obtain a synch license. That license allows for a new version to be used in conjunction with the visual, and it pays a royalty to the copyright holder of the tune, but if the producer uses a previously recorded version of the tune there is yet another piper to pay. Let’s say a version by Josh Groban is out there (if you can believe that one), and that particular version is the one that the producer has to have. He can use it, but he must also obtain a Master Recording License from the copyright owner. In simple terms: create your new version of copyrighted material—get a Synch License. Use someone’s version of copyrighted material—get a Master Recording License for the version of the song that you will use, and get a Synch License from the copyright owner of the tune.
Synch Licenses are negotiated directly with the copyright holder and their procurement is not something that a novice, or for that matter even an experienced non-lawyer type, should attempt on his or her own. There are lawyers and music companies that can do that for you, but you can do more preliminary legwork. You can search for publisher information using online databases such as:

•ascap.com
•bmi.com
•sesac.com
•loc.gov/copyright^vi

Royalties are definitely a good thing. As my friends and I used to say, “You have to find ways to make money while you sleep.”
Patents and Trademarks
Patents are granted for inventions. You design a new reed clipper and if you want to prevent others from using your special way that the clipper works, you patent it. U.S. patents are good only in the U.S., its territories and possessions. Its term is 20 years. There is expense involved since searches must be done to verify that your design has not been previously patented. You do not need to have a patent attorney, but unless you have a lot of free time, and feel like gambling that you will do it right, it is wise to hire one.
“A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.”^vii The symbol used to indicate a trademark or servicemark is ®. TM and SM are used for trademarks and servicemarks when the application is pending.
There is an Eastman School jazz ensemble that consists of five saxophones and a rhythm section. Over the years the group has won several DownBeat (magazine) awards and has released one record and two CDs. In 1980 we came up with its name—Saxology. It’s a good name and I felt we should trademark it, so we did. Sometime in the early 1990s my son-in-law told me he saw a Saxology recording in a record store in Washington, D.C. I thought that was a little odd, since our first record didn’t have wide distribution. It was mainly just for us to sell at gigs. Upon closer examination we discovered that an English saxophone quartet was using the same name and had a recording out that was being sold in the U.S. I contacted our attorney and after some back and forth the U.K. group was prevented from using the name in the U.S. We were also prevented from touring the U.K. under the Saxology name.

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ⁱ Bernard Korman and I. Fred Koenigsberg, “Performing Rights in Music and Performing Right Societies,.” Journal of the Copyright Society of the USA, Vol. 33, No.4 (July 1986), p. 348.
ⁱⁱ American Society of Composers, Authors and Publishers (ASCAP) http://www.ascap.com
ⁱⁱⁱ Broadcast Music, Inc. (BMI) website. http://www.bmi.com
^iv Society for European Stage Authors and Composers (SESAC) website. http://www.sesac.com
^v Signature Sound Website, “Eleven Most Frequently Asked Questions About Music Licensing,” http://www.signature-sound.com/11quest.html#q3
^vi Library of Congress. loc.gov/copyright
^vii “What Are Patents, Trademarks, Servicemarks, and Copyrights?”, United States Patent and Trademark Office website. http://www.uspto.gov/web/offices/pac/doc/general/whatis.htm