The Performance Right Juncture: Sound Recordings

Prior to 1972, no federal copyright protection existed for sound recordings. Congress rectified that situation by extending copyright to any recordings that were fixed on or after February 15, 1972. The owners of the copyright therefore had the exclusive right to reproduce and distribute phonorecords embodying the sound recording, including by means of digital transmission, and to authorize others to do the same. Pre-1972 recordings remained subject to the protection afforded by state laws.

As to the performance right aspect of sound recordings, the right that was enjoyed by musical compositions was non-existent for records. No performance royalty existed in any medium for sound recordings. That changed in 1995 with the passage of the Digital Performance Right in Sound Recording Act (DPRSRA), which provided for a limited right when sound recordings are publicly performed “by means of a digital audio transmission.”¹ The 1998 Digital Millennium Copyright Act (DMCA) included webcasting as a category of performance applicable to this limited performance right.² This new right applied specifically to satellite radio (e.g., SiriusXM), Internet radio (e.g., Pandora), and cable television music channels (e.g., Music Choice).³ Broadcast radio continued to be exempt.

It is important to note that the statutory license applies only to non interactive services. The right to perform copyrighted sound recordings for on-demand services, i.e., interactive services, remains with the copyright owner, normally the label, and is a negotiated agreement between the label and the music user. These deals have taken many forms, including percentage of gross or net revenue formulas, per performance rates, an equity stake in the business, or a combination of these and other elements.

The rates and terms of the sound recording statutory license are set by the Copyright Royalty Board (CRB), an administrative body created by Congress. SoundExchange, a nonprofit organization, has been designated by the Librarian of Congress and the CRB to be the sole entity to collect, administer, and distribute the royalties from non interactive webcasting, digital cable, and satellite transmissions and satellite audio services. Congress also gave SoundExchange the right to negotiate agreements separate from those set by the CRB through the Webcaster Settlement Acts of 2008 and 2009.⁴ Services therefore can choose whether to be licensed under the CRB rates or the SoundExchange negotiated rates.

There are five major sound recording licensing categories, each of which is subject to a separate rate proceeding. The categories are webcasting, satellite radio, preexisting music services, other cable and satellite music providers, and business establishments. An example of one of these proceedings involved SiriusXM satellite radio, which concluded in 2012 and set rates for a five-year period at 9 percent of gross revenue for 2013 increasing to 11 percent in 2017.⁵

Webcasting IV—the proceeding regarding future webcasting rates—commenced in early 2014 and will conclude at the end of 2015 and will set rates for the period 2016-2020.⁶ The most recent five-year CRB per-performance statutory webcasting rates were $0.0019 for 2011, $0.0021 for 2012 and 2013, and $0.0023 for 2014 and 2015.⁷

The Webcaster Settlement Acts of 2008 and 2009 allowed SoundExchange to negotiate alternative royalty rates (“pureplay” rates) with certain webcasters. For non subscription services and broadcasters streaming their content on the Internet, the “pureplay” per-performance rate started as $0.00102 for 2011 and increased to $0.0013 in 2014 and $0.0014 in 2015. The rate applicable is the greater of the per-performance rate or 25 percent of U.S. gross revenue. The “pureplay” per-performance rate for subscription services started at $0.0017 in 2011 and increased to $0.0023 and $0.0025, respectively, for 2014 and 2015.⁸ No percentage of revenue figures applied to the subscription rate. Under those agreements, webcasters therefore had a choice to be licensed through 2015 either with the CRB rates or the SoundExchange “pureplay” rates.

As to the current Webcasting IV-CRB proceeding, SoundExchange’s initial rate proposal for the 2016-2020 period was a “greater of” formula taking into account a per-performance rate and a percentage of the service’s revenue. Specifically, the per-performance rate for commercial webcasters would commence at $0.0025 in 2016 with escalations to $0.0029 in 2020. The percentage of revenue would be 55 percent for all five years. Its proposal was based on the fact that webcasting is a vibrant and growing industry, that it has widespread adoption by consumers, and that direct licensing deals between record companies and on-demand services (interactive streaming) were the most similar appropriate benchmarks to use. A review of these deals confirmed that the record companies received a minimum share of 50-60 percent of a service’s revenue, with allocations based on each record company’s share of total streams.

Music services, on the other hand, argued in their direct case that the industry is not profitable even considering payments under the reduced Webcaster Settlement Act agreements. Pandora, SiriusXM (streaming component), and the broadcasters, through NAB among others, came up with proposals ranging from a royalty of $0.0005 per performance for all five years, to $0.0016 pending study of the direct deals, to a $0.000125 rate similar to the Canadian rate. Pandora supported a “greater of” rate of $0.0010 per performance or 25 percent of revenue.

SoundExchange Distributions/Direct Licenses

SoundExchange collected $650 million in 2013 pursuant to the statutory license and distributed $590.4 million to artists and sound recording copyright owners.⁹ Collections and distributions for 2014 are projected significantly higher than 2013. Royalty distributions are allocated 50 percent to sound recording copyright owners (many times the label), 45 percent to featured artists, and 2.5 percent each to non featured musicians and non featured vocalists via the Intellectual Property Rights Distribution Fund administered by the American Federation of Musicians and SAG-AFTRA. An additional $6 million was collected from foreign country collection societies that handle the performance right in sound recordings. As to this latter collection, it is limited based on the reciprocal right being administered in each country. As the U.S. sound recording performance right is a very limited one (non interactive streaming primarily), it substantially reduces the amount of royalties coming into the United States for overseas sound recording performances.

Finally, in the case of rights owners wishing to directly license their works to non interactive services and not rely on the statutory license or SoundExchange separately negotiated deals, SoundExchange does offer administration services to both labels as well as artists for those works.

Pre-1972 Sound Recordings

As previously mentioned, sound recordings fixed prior to February 15, 1972, are not subject to copyright, and any rights they do have depend solely on whatever rights are afforded to sound recording owners under state law.

In September 2014, in Flo & Eddie Inc. v. Sirius XM Radio Inc., the U.S. District Court for the Central District of California ruled in a motion for summary judgment that copyright ownership of a sound recording under the California statute includes the right to publicly perform the recording, and that Sirius XM’s streaming of the 1960s band the Turtles’ pre-1972 recordings without authorization and without paying royalties constituted copyright infringement.¹⁰ In November 2014, the U.S. District Court for the Southern District of New York in Flo & Eddie, Inc. v. Sirius XM Radio, Inc., ruled that Sirius XM had committed copyright infringement and engaged in unfair competition by publicly performing sound recordings owned by Flo & Eddie.¹¹ These cases and their appeals as well as similar pending cases regarding the same or similar issues need to be watched, as they could have a very significant impact on future sound recording license fees and royalties to labels and artists.

The Performance Right: An Overview

Of the two performance areas under discussion, musical composition rights and sound recording rights, the sound recording side seems much clearer than the composition side. The sound recording performance right, at least for now, is a very limited right (traditional radio, for example, is not included) and has a statutory scheme in place with rates set by either the CRB, by SoundExchange with users, or by direct negotiations between copyright owners and users. Over the past 10 years, this has been, percentage wise, by far the biggest growth area for sound recording copyright owners.

The musical composition performance right, on the other hand, has more questions and unresolved issues in the licensing process than ever before. Not only do you have unresolved rate court cases and issues affecting every aspect of the licensing of music in the “new media” world (not to mention the effect on traditional media licensing) but also the entrance into the field of new types of PRO models (music publishers, business entities, administration services, foreign territory rights management organizations, etc.). This could, depending on your point of view, significantly complicate the existing licensing structure for music users, achieve “willing buyer, willing seller” market rates for the creative community and their representatives, strengthen the arguments for licensing through the traditional PRO model, weaken the current traditional PRO structures, increase license fees and royalties in some areas with reductions in others, initiate an era of PRO selective administration services only, create new writer and music publisher royalty payment formulas, values, compensation plans, guarantee arrangements, royalty advance deals, bonus and “rewards for success” policies, and other financial incentive plans.

In addition, the direct licensing of works by copyright owners, never a major factor in the past, has taken on new significance in not only the online “new media” world of music licensing but also traditional media music licensing practices. Finally, the DO] review of the ASCAP and BMI consent decrees, in effect since 1941, could have a significant effect on the future of music performance licensing, assuming that any changes encompass more than just minor modifications.

The foreign marketplace, responsible for the collection of over $1.5 billion in annual U.S. writer and publisher performance fees, represents an additional area of concern regarding the stability, continuation, and accuracy of “overseas” royalty payments. The issues in this area are more significant for songwriters and composers than music publishers, as many publishers collect their monies directly from foreign societies as members or via subpublishers. For successful songwriters, film and television composers, and writer estates, foreign royalties—for many, easily in excess of 50 percent of their short-term and long-term royalty income—have always flowed through the societies through reciprocal agreements, and any change in those relationships could have a major impact on the ability to license, track, audit, collect, and receive foreign country songwriter and composer royalties. The best advice for the future in all of your deals, negotiations, and contracts is to “prepare for every contingency and possibility”—as they may very well come true. Welcome to the “new world of performance licensing.”

By Todd Brabec

Todd Brabec is author with Jeff Brabec of the bestseller Music, Money, and Success (New York, 7th Edn.). The piece was originally published in Entertainment and Sports Lawyer, a publication of the American Bar Association, Vol.31, No.4, Winter 2015, pp.1 and pp. 37-42. The first part of this article, published by the MBJ in May 2015, dealt with the performance right in sound compositions; https://www.thembj.org/2015/04/the-performance-right-juncture-i/

1. Pub.L. No. 104-39, 109 Stat. 336 (1995).

2. Pub. L. No. 105-304, 112 Stat. 2860 (1998).

3. See 17 U.S.C. §§ 112, 114.

4. Pub. L. No. 110-435, 122 Stat. 4974 (2008); Pub.L. No. 111-36, 123

5. In re Determination of Rates and Terms for Preexisting Subscription Ser­vices and Satellite Digital Audio Radio Services, No. 201 1-1 (C.R.B. Dec. 14, 2012), available at http://www.loc.gov/crb/comments/2012-12/Public_lnitial_ Determination.pdf.

6. See In re Determination of Royalty Rates and Tenns for Ephemeral Recording and Digital Performance of Sound Recordings (Webcasting IV), No. 14-CRB-0001-WR (C.R.B. 2014 )

7. 37 C.F.R. § 380.3.

8. Notification of Agreements under the Webcaster Settlement Act of 2009, 74 Fed. Reg. 34,796 (July 17, 2009).

9. See Comments of SoundExchange, Inc. 3, 20 (May 23, 2014), http://copyright.gov/docs/musiclicensingstudy/comments/Docket2014_3/SoundExchange_lnc_MLS_ZO14.pdf.

10. Order Granting Plaintiff’s Motion for Summary Judgment, Flo & Eddie, No. CV 13-5693 PSG (RZx), 2014 WL 4725382 (C.D Cal. Sept. 22, 2014).

11. Memorandum Decision and Order Denying Defendant’s Motion for Summary Judgment, Flo & Eddie, No. 13 Civ. 5784(CM), 2014 WL 6670201 (S.D.N.Y. Nov. 14, 2014).

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