March 2007
Dear Songwriter, Composer and Publisher:
As many of you know, BMI recently filed a friend-of-the-court brief supporting songwriters’ and music publishers’ right to performing right royalties in digital downloads. BMI’s brief said that the Applicants in the ASCAP Rate Court case are attempting to “eliminate forever an existing multi-million dollar income stream” that BMI and its sister societies around the world have developed for songwriters and music publishers by licensing public performance rights in Internet and ringtone download services.
The copyright law is clear and definitive on this point: Downloads are transmissions and transmissions to the public are public performances under the plain language of the Copyright Act. This conclusion is supported by the Act’s legislative history and case law. The legislative history shows that it was Congress’s intent that a “performance” may be accomplished by any sort of transmitting apparatus, any type of retrieval system, or other techniques or systems that were not in use or even invented at the time of the passage of the Copyright Act of 1976.
The Applicants in this case propose potentially taking as much as $30 million annually in domestic revenues out of songwriters and music publishers pockets in their attempt to declare all downloaded media to be exempt from existing United States law. In addition, their position jeopardizes revenues that United States creators currently receive from exploitation of their works abroad that are subject to reciprocal representation agreements as well as international copyright treaties. This novel attempt at reinterpretation of the law could be just the first step in a campaign to abolish the rights of screenwriters, actors and musicians, directors and other creative artists when their creative works are downloaded.
Our filing is supported by marketplace precedent established by author’s rights societies in America and throughout the world. BMI signed its first license for downloaded ringtones in 2001. Over the past six years, it is estimated that United States performing right societies have generated approximately $40 million in license fees from ringtone services. We were the first major music industry organization in the world to create licenses for uses of music on the Internet and currently serve more than 4,200 digital media properties including the world’s leading digital media companies.
Another issue raised in the case attempts to revive an argument that has been dismissed in law and practice years ago when the applicants take the position that only one right can be implicated at any one time. This position ignores the structure of copyright law — and the irrefutable market facts — that one use of creative content can and frequently does trigger multiple rights.
We are confident that the court will affirm the rights of songwriters and music publishers and settle this matter according to the law. BMI’s brief was supported by institutions representing the creative and business interests of America’s songwriters and music publishers, including the Nashville Songwriters Association (NSAI) and the Songwriters Guild of America (SGA). Other major industry organizations at home and abroad have also filed friend-of-the-court briefs in support of performing right in downloads, including the National Music Publishers Association (NMPA), the Association of Independent Music Publishers (AIMP), the Church Music Publishers Association (CMPA), American performing right organization SESAC and Canada’s national copyright organization SOCAN.
As technology creates new ways to bring music to consumers, it becomes crucial that we find ways to adapt and reshape long-standing business practices to meet marketplace needs. The new music licensing agreements crafted by BMI with both the ABC Television Network and Yahoo are prime examples of this approach. The ABC agreement covers the expanded use of music by ABC in areas such as web video and assures fair compensation to BMI songwriters and publishers for these new uses, while the Yahoo agreement, which runs through 2011, provides for a new, multi-tiered rate structure. These agreements clearly demonstrate how BMI works with our customers to develop licenses that cover new delivery methods and new business models. As we develop new revenue streams for our writers, composers and publishers, we will also expand our royalty distribution system to provide you with detailed information on these new uses of music.
The new technologies available to us also provide the opportunity to communicate with each other and do business more rapidly and efficiently than ever before. I’d like to remind you about the tools available to you at the “Online Services” area of our website, bmi.com, where you can update your mailing address and e-mail address, view your royalty statements and catalog, register new works, sign up for direct deposit of your royalties or take advantage of exclusive offers such as the US Bank Loan Program and “The Card,” which allows songwriters and composers who do not currently have a bank account to enjoy many of the advantages of an ATM card for access to their BMI royalties. Keeping your e-mail address up to date is particularly important, as it allows us to communicate vital news and information to the songwriting community at a moment’s notice. From time to time I may ask you to help us, and yourselves, with calls to action in the preservation of copyright and other issues that affect each and every one of us in this constantly evolving marketplace.
Our congratulations go to the Dixie Chicks, Red Hot Chili Peppers, Carrie Underwood and all those BMI songwriters and composers honored at the 49th Annual Grammy Awards, held last month in Los Angeles. Congratulations also to Gustavo Santaolalla, who took home an Oscar for Best Original Score for the second consecutive year, this time for his work on the motion picture Babel.
Sincerely,
Del Bryant
President
Chief Executive Officer
