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So PMA Peeps, and Your Music Your Future folks, and Board members at the PRO’s – if you are listening and reading and I know some of you are, schedule some meetings and get this straightened out. We’re really sick and tired of these bogus excuses and our confidence in your approach of tracking music on air is eroding. We are not stupid and uninformed either.
News Flash: There is no such thing as a “small time” TV network. I am sorry but ESPN, BTN, SCRIPPS are companies making tons of money. ESPN is backed by Disney. People all over the world are watching this content every day at home in bars, in airports, in hotels…everywhere!
This should be sent directly to Your Music Your Future and start a campaign just as they did about the Discovery Networks situation!
Please send in JD. I speak up, complain, and protest to people all the time including YMYF as well as PRO board members. No one seems to disagree with me. I’ve had an ASCAP board member say to me “I hear Ya man.” But I am sorry sympathy only goes so far…we need real legal action and policy changes to Protect our future earnings. We need to close these ridiculous loop holes and excuses such as “well we don’t quite monitor those stations” or “We don’t have Pharma spots in our database”. Or ” We don’t recognize I Spot TV or Tunesat data”/
Anyone living in LA? there is a discussion panel tomorrow at UCLA to discuss the negative impacts of direct licensing. Go there and make some noise.
The irony is that music contributors who fill up libraries shelves with music content, never agreed to be by-passed from this loop hole (selling direct licenses to SCRIPPS, BTN, ESPN, NETFLIX, etc) Every composer stocks the shelves of a library with the promise that we will be paid for on air network and cable TV performances.
So the discussion should evolve to “How do we end the loop hole of some TV show productions and entire networks not paying BMI, ASCAP, and SESAC, license fees to broadcast our PRO registered music?” and “Which music libraries can we expose and criticize for engaging in what amounts to overt theft, and generally seedy business practices where greedy music libraries secretly sell direct blanket licenses to ESPN, BTN, SCRIPPS, knowing that composers will NEVER be paid for the background cues?”
Does everyone fully understand what is happening? We. the music content creators stock the shelves of companies like SK, JP, M and many other PMA libraries essentially for no up front money at all, they then say “Thanks!” now we will go and sell direct blankets to ESPN, BTN, SCRIPPS, and NETFLIX with YOUR MUSIC, we will get paid. You will not get paid.”
Then the issue of extortion and bribery needs to be discussed, the practice of publishers being forced to sacrifice their publishing share by some TV shows, so the producers of the show get publishing credit. The “client” is suddenly morphing into the “publisher” so they can enjoy the back end royalties. PRO’s know this crap is going on yet they just look the other way?https://pmamusic.com/events/direct-licensing-and-the-value-of-music-whats-your-future-worth/
A possible solution – do you register your tracks with the copyright office? The big plus in registering is if you enforce your copyright you are entitled to both penalties and attorney fees. If everyone is washing their hands to compensate the composer, it may be time to start registering and enforcing the copyright. After a couple six or seven figure judgments, those who owe the composer might be a little more interested in paying the royalties.
Thanks jdt9517 but I believe (and MichaelL will correct me if I’m wrong), it takes $75k to bring a copyright claim to a federal court. I actually did think about taking it to small claims court though.
Hi Art, That’s not correct. The $75K you mention is the amount in controversy requirement for cases being brought under diversity jurisdiction. For example, residents of two different states might bring state tort claims in federal court under diversity jurisdiction. In contrast, copyrights are governed by federal law. Federal courts have federal question jurisdiction over copyright claims. There is no amount in controversy requirement for cases brought under federal question jurisdiction. That requirement was eliminated in 1980. It is the potential cost of litigation that is prohibitive.
jdt9517 brings up an interesting point. In your case, however, the production company paid a license fee to use your music. Through that license, you have given them permission to use your music within the limits of the license. Assuming that the networks and cable channels pay some kind of blanket fee to the PROs, the question is whether or not BMI and Numerator are doing their job. Neither BMI nor Numerator are using your music, so they are not infringing on your copyright. It seems that the fundamental issue between you and BMI is contractual, whether or not it is upholding its obligation (if such exists) to use its best efforts to collect royalties on your behalf.
I do agree with jdt9517 regarding the importance of registering your copyrights. But, be aware that timing is everything. If you wait too long you can severely limit potential damages and lose the ability to collect legal fees. Many infringement claims are never made for this reason. The movement for a “small claims” copyright court is not about the amount in controversy, but rather about making pursuing claims and enforcing copyrights “affordable.”
I emailed the Your Music Your Future folks after the Discovery victory and said they should keep the momentum going. If there isn’t some kind of lobbying effort or union of some sort to rep composers, I see continuing problems.
Michael is right about federal question jurisdiction. The $75k “diversity jurisdiction” requirement is not applicable. While I haven’t looked deeply into it, one who has a registered copyright has a statutory right to get paid for a performance. It would seem to me that everyone in the chain would be joined in the action, from the end user to the PRO. The composer merely demonstrates the performances and no payment. They can point the fingers at each other and explain why the composer should not be paid by them. I don’t think a federal judge would be very happy about a scheme where payment to the composer gets bypassed completely. Somebody will pay.
The case would have to be brought in federal court. State small claims court does not have jurisdiction.
BTW, my “real job” is a lawyer and I do a lot of federal practice. I have defended actions by copyright holders where a nightclub or sports bar performs registered copyrighted material. They are ugly. Settlements are in the tens of thousands of dollars for for one unlawful performance.
Art, my hope is that the ads will eventually make it to Competitrack, and the Pharmaceutical explanation makes NO sense whatsoever.
Please keep us updated on this. Especially if you hire a “royalty recovery” specialist. We have run into similar situations. Furthermore, even on spots that Competitrack DOES recognize, it seems that iSpot recognized many more airings than Competitrack.
Frustrating to say the least.
Michael & JDT, I’m not sure how “big” this problem is overall, but it sounds like it might be. If there are enough composers affected who could viably claim copyright violation and subsequent loss of performance royalties (AND willing to participate, of course), would a Class Action lawsuit be worth considering? I don’t often jump to legal recourse as the answer, but if enough individual attempts reach dead ends, it might be a consideration. A well versed Lawyer or Law Firm might be interested in at least looking into this and possibly pursuing it. Thoughts?
I Spot and Numerator need to be perceived as equals. They offer very similar data.
Meanwhile ASCAP continues to email the hell out out of us to sign up and Pay for their ASCAP Expo in LA.
The PRO’s all clearly show a pattern of honoring data when it works for them and not honoring hard evidence/ data when it may mean they have to cut a big check. Isn’t it interesting that ASCAP uses SOUNDMOUSE for TV broadcast proof/ verification and composers do not even get a copy of the reports/ detections?Art this will help you learn which networks Numerator monitors:
https://www.ascap.com/~/media/files/pdf/help/payment-system/numerator_television_all_2018.pdfThis will be a good refresher for all:
https://www.ascap.com/help/royalties-and-payment/payment/musicinadvertisementsAnd indeed, absolutely, THE PMA, MLR Members, YOur Music Your Future members…we desperately need to unionize, and protect our future. After doing this dance for 20 years, I still do not see any improvements with transparency as it relates to PRO Payments. I mean, yesterday as I was flipping through cue sheets inside ascap, you have no idea how many broadcasts are in there that just NEVER PAY. The cue sheet is filed yet we still do not get paid. BTN, ESPN, Major League Baseball games, UFC Broadcasts…the list goes on ad on.
-The first policy change a legal team needs to “win” is making it illegal to direct license and broadcast on cable TV networks PRO Registered music. The PRO’s need to change that Policy asap.
-Secondly, the legal team needs to threaten TV show production companies that engage in extortion where they (The client) makes themselves “Publisher” through bullying libraries who should be getting full credit as publisher but instead are forced to retitle and re-register entire catalogs!
Or….
-Libraries need to stop “Bribing” TV show production companies with the publishing share drug they are offering to win the the contract as music supplier.-Libraries need to stop selling direct blanket licenses to various shows and networks letting them off the hook for Cue Sheets and performance royalties (ESPN, SCRIPPS)
I am not in on these meetings between Libraries and TV Show Producers, but my hunch is that it’s a combination of both bribery and extortion.
yes SESAC indeed with Tunesat (and Bmat)
Try seeing if Chris at Tunesat can help you with this. It is really awful and heartbreaking.
Also see if the PMA can help you.
I myself have seen that ad quite a few times.
I have a BMI co-writer who did not get paid royalties on 3 ads we did because BMI was requiring to see and file a copy of the contract and I had to sign an NDA with the product company therefore I could not share the contract and my BMI co-writer did not get paid. Just Tragic all this stuff is!!!
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