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Admittedly I didn’t read all the replies to arts situation as posted here, but wouldn’t the library have something to say about this situation? That is aren’t they sharing in the revenue stream? Sorry if I’m overstepping bounds here but I’m new with this site, And music library’s.
Art, I do think you will be paid if you keep the pressure on high. My goodness, the spot has aired 8500 times in just one month. That is a massive media buy, so far, and some big money is being spent promoting single care. This can be a spot that hit’s 15,000 air dates in Q1, 2020 alone.
Martin Sheen probably does not work on this unless he’s getting big bucks.
You’ll get paid. Just keep sending BMI the evidence you have. It may end up in Numerator’s database. Maybe bribe Numerator to get it in there? LOL!
@chuckdallas- I wouldn’t mind looking this over from a legal perspective. I do believe that we’d have to have registered copyrights to have clout. If I remember right, the copyright needs to be registered within 90 days after the violation. I will look into this a little more. Maybe Art can create a sidebar for this discussion.
Hi Art and jdt9517,
Timing of registration is critical. The 90-day window is limited. From the Copyright Office Circular 1: https://www.copyright.gov/circs/circ01.pdfA copyright owner may be entitled to claim statutory damages and attorneys’ fees in an infringement lawsuit if the work was registered before the infringement began or within three months after the first publication of that work.
In order to have potential access to statutory damages and legal fees you would have had to register the copyright before the alleged infringement, which you did not in this case. In the alternative, you would have had to register the copyright within three months of publication, which would be within three months of the date that you first published the track by offering it for sale or license to the public.
Additionally, in a recent court case, Fourth Estate Public Benefit Corp. v. Wall-Street.com , SCOTUS unanimously held that a copyright registration must have “received final action” from the Copyright Office before a claimant can bring a copyright lawsuit. In other words, under this holding, you cannot initiate a lawsuit based on having filed a registration. The work must be registered.
@Michaell- Thanks for the insight about the Fourth Estate case. Like you, I thought that taking longer than 90 days to register would bar the suit. However, the Supreme Court seems to question that such a suit is barred:
Fourth Estate raises the specter that a copyright owner may lose the ability to enforce her rights if the Copyright Act’s three-year statute of limitations runs out before the Copyright Office acts on her application for registration. Brief for Petitioner 41. Fourth Estate’s fear is overstated, as the average processing time for registration applications is currently seven months, leaving ample time to sue after the Register’s decision, even for infringement that began before submission of an application.
If the Supremes think that a claimant can sue for a pre-application infringement after a seven month wait for the registration, there must be some kind of tolling of the ninety day period. Am I missing something there?
Maybe registration “relates back” to the date of application?
Hi @jdt9517,
We’re giving everyone a glimpse at lawyers’ thought process! I agree that a suit may not be time barred. What I am addressing is whether litigation would be economically practical, given the timing of the registration.Many composers do not bother to register works. They just upload to libraries as soon as the track is complete. If infringement occurs more than 90 days after publication and the work has not been registered that claimant most likely loses access to statutory damages and legal fees. Of course, they can still sue for actual damages, the infringer’s profits and an injunction to stop the infringer’s activity. In a case like this, even with thousands of broadcast performances, it could easily cost more to litigate than would be recovered.
Given that the track was legitimately licensed, and that BMI is not infringing on Art’s work, it seems the issue is a failure of BMI to perform its obligations to Art under his writer agreement. Thus, there is a potential breach of contract claim. Without looking at BMI’s writer agreement, I would be very surprised if there are not choice of forum/venue clauses that might limit any action to arbitration.
I’ve had this happen many times including over seas placements too. I’m currently on SESAC (US), but which service digital or standard PRO truly gets the money we are owed back to us properly? Why do we pretend these companies are here to protect us and to track down our hard earned pay? I’m looking for the best out there…anyone?!
As sucky as this seems;
As incompetent as this seems;
As corrupt as this seems;
As debilitating as this seems;
As frustrating as this seems;I just consider it a cost of doing business. I know that’s not what you want to hear Art, and I REALLY hope you get some satisfaction in the matter – (and GOOD for you sticking it to them), but my experience over the years is that you can’t “fight city hall”. And unless you have risen to the elite few that get ear service by our beloved PRO, you get nothing. The fact is, many of us would be retired if they paid out as they should. Concentrating on these inequities has left me frustrated, and beat down, and that’s not a good combination for creativity and creating the best music you can. For ME, I just move on and hope for the best next time.
I have a call in right now to BMI asking why I have tens of millions of performances per quarter on Amazon VOD, and barely make $100 for it. TENS OF MILLIONS!!! By THEIR numbers. not mine. Or why Netflix only lists “1” performance per quarter, and we just have to take their word for it.
The whole PRO system is out of control and corrupt, and they move money around to and where they want / need it. “Fairness”, “clarity”, and “accountability” are thrown out the window in exchange for “opaqueness”, “ignoring the client”, and outright lying.
To those coming in,…..you want into the business? Get used to this kind of corrupt and incompetent BS. A missed performance here or there means nothing to me. Hundreds of missed performance do not phase me. It gets me pumped when they turn into thousands, or GASP – MILLIONS (over time) of worldwide performances that get summarily ignored.
And believe it or not, MILLIONS is not out of the realm os possibility in current styles of “broadcast / streaming” paradigms. It’s happening. It’s real. Writers of production music are getting ****** every day. My advice for those coming in is to get used to it, write more, write better, hope for a better future.
PS – regarding my 3rd paragraph – do you think I’ll get a call back? It’s been a week. I’d be willing to wager good money that I’ll never hear a peep. What are they going to say? Yes LAwriter, we only pay out $0.000005 per performance?
Ha! I can guarantee you that BMI is collecting more than that. you could multiply that by 100 or even 1000 and it still would make a 2 bit cable performance look great.\
Highway robbery I tell ya…..
my experience over the years is that you can’t “fight city hall”
My experience is you can fight City Hall, you just can’t win. 🙂
My experience is you can fight City Hall, you just can’t win. ?
Haha!!! :). Yeah, but kind of the same thing, no?
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