New ASCAP Licence for Podcasts?

[notyourusualbollocks]

I just picked this up on my RSS feeds.

http://www.ascap.com/weblicense/

Too good to be true?

MK

[allthewhile]

i'm a newbie, can you explain the possible significance?

[notyourusualbollocks]

Well from what I understood a few weeks ago - there were no plans in place to offer a Podcast ASCAP licence. However, it now looks like they're going to offer one which means you can play copyrighted tracks from RIAA labels if you have a licence. I don't know how much these things take up time-wise to maintain as I believe you have to maintain a log but it is a move in the right direction.

Examples of non-interactive music uses that qualify for Release 5.0 include:

* Music that is embedded on one or more pages of a site or service, such as a "Flash" intro
* Webcasts of live performances
* Radio broadcasts or pod-casts that do not offer a play-list, program guide, and do not make advance lists of the songs contained in the programs available prior to their transmission

I think this is a move in the right direction. Paying US$250 for a yearly licence isn't really a lot is it?

[PBCliberal]

Just for clarification, there are two types of rights involved in playing a "fixed sound recording" of a copyrighted composition.

There are the rights to the music and lyrics themselves. These are (or at least have been) licensed by three primary associations:

ASCAP - The American Society of Composers, Authors, and Publishers

BMI - Broadcast Music, Incorporated

-and the me too of clearinghouses:

SESAC.

Since ASCAP put the screws to radio in the 1930s, everybody has paid these guys. In fact, the Broadcast in Broadcast Music, Inc. came about because radio station owners fought back against ASCAP in a similar but not as eloquent way as we're fighting back with Creative Commons.

ASCAP not only shakes down broadcasters and record companies, they go after restaurants and nightclubs with live music, even chain stores that have speakers in the ceiling. A few years ago, they even went after the girl scouts for singing songs around a campfire, but they took such heat over that, today they'll claim it was just all one big misunderstanding.

But don't think that just because ASCAP has muttered the word "podcasting" in a legal document that you can put the needle in the groove. There's the little matter of performance fees: the right, after you've satisfied the writer of the song (in practice usually the thief who got the writer to sign the rights over in exchange for recording and promoting it--Google Ralph Peer) to actually play this version of the song you just paid ASCAP/BMI/SESAC for. The RIAA talking point for this is, why should the writer get paid and the perfomer get nothing. The in-practice gotcha is that most records are works for hire paid for by an advance and final lump-sum payment on delivery, so you're often paying the same thief who just robbed you for the notes and words.

In radio performance fees were never addressed; legacy teaches that there are none, because performance was taken care of through union contracts with the AFofM and the lousy quality of 78s that conspired to keep records off of radio until the 50s.

The RIAA controls performance fees for those recordings its members own, through the Digital Millenium Copyright Act, one of many pieces of insidious legislation enacted in the 90s by an unholy alliance of rich corporate media and the best Congresscritters money could buy.

So the ASCAP contract is significant primarily because we've taught lawyers a new word, but there is a very long way to go before Madge Weinstein can skip merrily through Magical Mystical Tour and not expect somebody's hand up her dress.

[dhp]

That was a great post, though I take exception to some of the things you said. I publish through ASCAP, and don't look at them as 'shaking down' anyone - let alone labels. If anything, they're in bed together. ASCAP has every right to collect performance royalties from songs being played in public. Some of their tactics may be improper, but the fact is that if you play a song written and recorded by someone else for PUBLIC consumption (a bar with speakers, radio station, etc), you should pay the owner of that song. Now, you shouldn't have to pay through the nose, but if I spent my time and money creating something, I also deserve to be paid.

That's just my 2 cents. I think 250 seems VERY reasonable for a license - and I can't WAIT for this legal stuff to sort itself out, as the Creepy Sleepy Show (currently covered under an educational license www.kbhufm.com) will be going solo podcast come may. Can't wait, and I'm excited to join such a great community!

-dhp

[Craig]

PBCLiberal is correct, based on some research I've done this week on song licensing for Behind the Scenes. ASCAP/BMI/SESAC licensing buys you the rights to perform a composer's song yourself, as a musician. It does not buy you the right to play a recording of someone else performing it, even if it's the composer. In order to purchase those rights (which you need in addition to ASCAP/BMI/SESAC) you need to buy licensing rights from SoundExchange, which is the licensing arm of the RIAA for the web. Cost? An additional $500/year with the caveat that this license was really only designed to cover webcasts. So podcasts still fall into a grey area.

Bottom line? IMHO your safest bet is to stick to RIAA-free tunes until the whole mess is all sorted out and the licenses are podcast-specific and non-experimental.

Craig

[Benny]

OK...So your advice is to just wait until the legal mix up is staightend out...

Then what about all the other Podcasts right now that are playing music and such...Aren't they asking for trouble?

And wouldn't it also be ok to just play the music and "because" nothing is completely defined about podcasting right now...The possible consequences would just be a slap on the wrist if it's later determined that it was illegal to play the songs?

It's not that I'm going to risk it.

Is there any new information about this situation?

[Craig]

Originally Posted by Benny

OK...So your advice is to just wait until the legal mix up is staightend out...

Then what about all the other Podcasts right now that are playing music and such...Aren't they asking for trouble?

And wouldn't it also be ok to just play the music and "because" nothing is completely defined about podcasting right now...The possible consequences would just be a slap on the wrist if it's later determined that it was illegal to play the song

In short, if it's RIAA music, then yes they are asking for trouble. How much trouble is up to the RIAA. It's possible but highly doubtful they'll just be given a slap on the wrist and asked to remove their podcasts from their servers. More likely, at best they'll be asked to pay licensing fees back to when they first started using the music once the RIAA settles on a fee structure. At the moment that could be as little as $1,500 for ASCAP/BMI/SESAC/RIAA licenses or as much as that plus $42.50 per song for mechanical rights plus who knows how much per song for the master use license. At worst I believe the fine for using music out of license is $150,000 per song. There will probably be at least one high-profile cases that gets pro-bono legal help if the RIAA decides to play hardball but regardless of whether or not they due to majority of podcasters involved are going to be looking at pretty hefty bills.

I could be wrong, and hope I am, but based on the RIAA's track record it's doubtful. From my perspective it's just a matter of time.

Craig

[Benny]

Ok...so I'll let others play with fire for the moment...

But you mention the RIAA alot...what about the ASCAP, or the BMI for that matter?

Who really owns these songs? And well, if it is so expensive...Then podcasting music for hobby purposes may be a little to expensive to be just a hobby...

Maybe 250 dol a year is Ok...but how many fees do you actually have to pay?

The thing is...for the moment Podcasting isn't really a money making buissness...But I guess somebody will find a way to make money out of it at some point...

And when they do...People that have been podcasting music "illegally" will already be sort of "famous" and they could market thier fame...

But on the other hand other people who are maybe worried about the legal stuff may miss out on a good oportunity.

But anyway...My point is: For those of us who just like the concept of podcasting and would like to spice up transmissions with a little music...Is there any EASY way to just pay a fee and not worry?

[PBCliberal]

Can I suggest something heretical here? Why are we letting "synchronous" music radio be the model for what we do? Not only does it fuel this belief that we're just a bunch of folks who always wanted to be DJs whom technology just gave a shiny new Mr. Microphone, it acts like this new medium has no more features than Marconi's radiotelephone.

Its understandable, of course. With new media we've always tried to find the closest thing we could and use it as a model. The first radio studios were outfitted like parlors, where people sang and played instruments. It took 15 years before brilliant people like Orson Welles learned how to destroy New York, New Jersey and the CBS radio network with an invasion of Martians.

DJ shows with commercially recorded music are so 50 years ago. We need to think outside the box.