Hello Songwriters, Are You Listening? - (part 2 of 3)|
[ No. 53 - March 2001 ]
The FezGuys predict: Punk music's gonna get good again, now that
corporate heads are so obviously running the United States. Please
refer to last month's copy of EQ or go to:
for the intro and glossary relevant to this column.
Broadcast Music, Inc. (BMI) is the #2, "We Try Harder" member on the
music performance collection society totem pole. Let's see what they have
to say about online publishing.
A useful site search feature can be found at:
<www.bmi.com/search/tree.asp>. We search on "royalties" and find
<www.bmi.com/about/library/brochures/royalty/print.asp>, "a convenient,
easy-to-read format (for) most of the information you want to know
about the method your BMI royalties are calculated and distributed." We
learn, among other things, that "BMI operates on a non-profit basis.
All available income is distributed, except for a modest reserve."
Apple unveiled it's foray into the MP3 jukebox market with it's
announcements of iTunes at Macworld in January. We'll provide
a more in-depth look in the future, but will say this: for
those of you who've been frustrated at getting a working, free
MP3 player, encoder and organizer for the Mac, your answer is
In a paragraph titled "Payment for Uses in Unmonitored Areas" we learn
that BMI collects license fees from, among other places; hotels,
restaurants, nightclubs, sports arenas, theme parks, airlines,
jukeboxes and retail stores. The next sentence is interesting. "If the
administrative cost involved in collecting the performance data for
music used by these licensees is not economically feasible, BMI may
choose an appropriate surrogate, such as radio or television
performances, for the distribution of the fees." It's the same
situation described in our last column. Namely; using radio and TV
performance data to decide how much money goes to which song writer.
This presents a big problem. If your music is used anwhere else but
radio or TV (hellooooo, Internet!), this payment scheme doesn't work.
Most of the information in this section of the web site revolves around
radio airplay, not surprising in a company with the word "Broadcast" in
the title. BMI wants us to know they have a worldwide presence but
dampen our confidence by coyly asking for our help. "Although BMI has
an extensive foreign royalty tracking system, we always welcome
information from you regarding foreign translations and details
regarding foreign sub-publishing agreements." Would this mean a break
in the fee if we do the footwork? Unlikely.
The site carefully addresses online music use. We learn that "BMI
licenses certain Internet sites and is seeking to license many more."
They're on the ball for sure. A caveat quickly follows: "As this is a
very new medium...policies still are being established..." True enough
and what are they doing about establishing these policies? We read on:
"To the extent that music usage information has been submitted to us,
we have distributed...royalties for performances of music over the
Internet on sites licensed by BMI. For further developments in this
area, please contact your local Writer/Publisher Relations office." So.
Don't delay, call or email them in Atlanta, Los Angeles, Nashville, New
York or London. Contact info on the site can be found at
<www.bmi.com/about/contact.asp>. And, like many artists who have
turned to the Internet to help close the gap of not living in big
cities, if you don't live near any of those cities, pick one out of a
hat and contact 'em anyways! Remember, where consumer relations are
concerned, every letter or phone call translates to representing
hundreds or even thousands of people. Consider it your call to arms to
demand the current establishment deliver fair reporting on (and
payments from) use of your music on the Internet.
Let's Pretend We're A Webcaster
For now let's pretend we're a webcaster and wish to license some BMI
songs for use online. We go to the BMI Digital Licensing Center
<https://dlc.bmi.com/dlcmenu.asp>, by clicking on: "I Am A Webcaster"
from the main site. We are invited to take advantage of an automated
system called (yuk) "Klik Thru." (The domain
<klikthru.com>, listed on
the WWW as "under construction", doesn't appear to be owned by BMI.)
First we'll take a look at BMI's Music Performance Agreement Fee
Calculator at <https://dlc.bmi.com/dlcCalculateChoose.asp>. We have two
choices: the "License Fee Calculator" (for "commercial entities that
generate revenues from the operation of the web site") and the
"Corporate Image License Fee Calculator" (for music use to "promote
your (primarily) off line business"). We''ll go with the former.
Clicking through opens a dialog box asking for our "gross revenue."
A-ha. Now we see how it is. Let's say we want songs to play while
visitors look over our web site (mostly pictures of kids and
dogs and nice sunsets out our kitchen window). Let's say we work a day
job and make $45K a year. We enter that figure into the box. Next we
are asked for annual estimated "page impressions" (defined as: "a
transfer request for a single web page"). Let's pretend 1200. Just
friends and family, right? We are next asked for estimated annual
"music impressions" (defined as a: "Page Impression of a Music Page
multiplied by the number of music file titles on that page"). We plug
in 300. Why not? It's a nice round number and maybe we like a lot of
music. Then again maybe we're bored. Are you bored? Of course you are!
Well buck up little camper, the best is yet to come. The two
"impression" criteria are calculated together to form what BMI calls
"Music Area Revenues" (MAR). MAR is defined as: "Gross Revenues
multiplied by a fraction the numerator of which is the total number of
Music Impressions for the Web Site and the denominator of which is the
total number of Page Impressions for the Web Site."
You got that? This must be the *NEW* new math. What it appears to be
saying is: regardless of whether anyone listens to the music on your
page or not, the fact that it's there and available means BMI will
charge you money.
We calculate based on the our phony facts. Looks like we'll be
annually owing BMI a sum total of $1115.63. Now, how about if we tell
the truth (for once) and say our faux web site generates no money
whatsoever (while keeping the "impressions" info intact). Calculating
the numbers this way shows we would owe BMI absolutely nothing. How
about if we up the "impressions" figures to the hundreds of thousands?
Still zip. Millions? Zero. Billions? Goose egg. This can't be right.
They would never allow us to use music for free on a web site that
recieved millions of visitors annually. Before we jump for joy and
start hurriedly uploading music on our free site we have to ask
ourselves: "Does this little BMI web site calculator really mean
anything?" Or is it a fake "interactive" feature designed to get us
hooked so we can be billed later? At the bottom there's a bit saying:
"If your estimated annual revenue does not exceed $25,000 you are
eligible to use our KLIK THRU License. The above fee calculators apply
to the KLIK THRU license." Curiouser and curiouser...Let's see what
happens when we apply for the (yuk) Klik Thru License.
Applying for the "Klik Thru" License
So, we're hypothetical webcasters drooling for some mainstream pop to
stream. It's the middle of the night and we want it now. We "klik thru."
The next page informs us we can "electronically enter into a binding license
agreement with BMI" but that we must be legally "authorized to bind the
entity (our streaming web site) for which the license is sought." The
term "binding" is always a swell way to feel good about doing business.
Who knows what we're agreeing to? We "klik" on and come to a big
sign-up page requiring all our pertinent data. We make a bunch of shit
up. Then they ask if our server is in the United States. We pretend
it's not and we're instantly dumped from the sign-up process
(understandable since BMI only handles US licenses). We go back and do it
all again. When we
come to the server location dialog box we tell 'em it's in Arkansas.
Why not? Next they want to know if we're affiliated with any
"FCC-licensed radio stations." We say no. Why go thru more dialog boxes
than we have to? Then they want to know if our fictitious web site is
affiliated with a "non-profit educational institution." Again we say
no. Another box pops up asking if we plan to "sell downloadable
full-length recordings." Definitely not. We're wondering why they
didn't put all these questions on one page. Next they want to know if
we "plan to generate revenues (i.e. ads, sponsorship, subscription
fees, etc.)." We don't. We provide our online services free. Yet
another (and kinda ridiculous) question: "Do you intend to operate your
web site primarily for the purpose of promoting your company's
corporate image?" What corporate image? It's "no" again. Finally we get
to the end of the line and what an end it is. On
<https://dlc.bmi.com/dlcmenu.asp> it is unequivocally stated that a
webcaster has "access to music performance licensing 24 hour a day!" as
well as being able to "get your web site music performance agreement
in minutes!" Now, however, after answering a bunch of questions
designed to assist them in learning about the webcaster demographic
we're greeted by this sad statement: "A BMI Sales Representative will
contact you within the next few days regarding your Internet license
agreement." A few DAYS!?! What the hell happened to the "agreement in
minutes"? Liars, that's what they are. Of course we lied about our
contact info, too, but at least it means our investigation into their
services has saved us a possible midnight call from lawyers. We feel
like sending them a bill for our time.
It feels pretty safe to say that BMI's web site and online music
publishing tools are all about BMI's convenience and BMI's time. Thanks
for nothing, gang. The FezGuys are very disappointed with you. We're
the first to admit that online licensing is a new and crazy concept for
an old-guard company, but from what we've seen, no significant progress
has been made in the past few years. Plus, the web site is rife with
typographical errors. You've got a long way to go, dear.
The final third of the Big Three of music performance collection
societies was originally called the "Society of European Stage Authors
& Composers" but moved to Nashville and changed their name to the
above-mentioned acronym. Like the previous two collection societies
(ASCAP and BMI) SESAC's heavy-handed rhetoric lets us know right away
that online music publishing should be left to the professionals. "The
system required to compute compensation is based on many factors,
including music trade publication chart activity, broadcast logs,
computer database information, and state-of-the-art monitoring." God
knows we little musicians could never handle it. As Barbie once said:
"Math is hard!" Calling itself the most "most technologically adept" of
the Big Three societies the SESAC web site turns out to be a woeful mix of
"under construction" messages and suggestions on where to go in the
site for information but providing no direct links to these recommended
areas. Ever heard the term "hypertext links," gang? There's no way to
become a member online. By explanation the web site offers that: "SESAC
has a selective process." That means you've got to apply. They don't
want just anybody. But that's probably a good idea. Quality, not
quantity, right? For songwriters who want someone else to take care of
everything (so you don't need to worry your pretty little head about
big, confusing numbers) this organization might be an appropriate
If you are interested in being involved in managing your career,
however, this company presents a few conundrums. If, as they say, their
web site represents "SESAC's continuing strategy to lead performing
rights in technological development" then maybe SESAC shouldn't use
white text on a black background. Really folks, your site design and
navigation is awful. This should be a tool for songwriters and
interested licensees, not a flash-filled sci-fi experience for kids.
Helpfully though, a link on the front page offers: "Simple,
Comprehensive Online Licensing" and "Complete Online Works
Registration." Clicking on either of these two links opens a message
that links us straight back to the front page. Again, no direct link to
the area they're talking about. So we start again at the top and click
on "Licensing." This gives us several choices. Which one? Let's try
"General." Yes, buried amongst the 30-odd examples of general licensing
(Country Club, Cruise Ship, Dance Studio, Family Show, Festival,
etc...) is the word "Internet." We open the General License and try
signing up. We see "Internet/New License." We click through to
"complete an online license." This downloads an Acrobat .pdf file to
our desktop to fill out that gets sent automatically back to
SESAC site. An option to print and snailmail the form is also
available. After completing the form we'll apparently be emailed in a
"few days" confirming our license. Minimum annual fee is $75.00 but
it's impossible to know just how real fees will be calculated.
There's also a "Report Unlicensed Establishments" link so you can play
snitch if you like. Be careful what you say, eyes are everywhere.
George Orwell would be proud to know just how accurately he predicted
our present. The SESAC web site reminds us that "When you purchase a
record, tape, compact disc, DVD or similar product you are granted the
authorization for a non-public performance, such as in your home or
car." That means any other use by you (including streaming over the
Internet) of copyrighted music is billable by the collection societies
and subject (under U.S. copyright law) to big fines if you break those
We've Learned Something Today...
The issue of fair distribution of monies collected (both on and
offline) by these three big collection societies remains unsatisfied.
Though boasting online licensing and pulishing agreements on their web
sites, these organizations do not appear to have followed suit by
providing clear tracking and payment/billing using new media
technologies. The FezGuys aren't convinced that the system is equitable
or even common-sensically oriented to online use. As the president of
BMI says on the company's web site: "The long term solution for
(tracking online music use) will be a form of watermarking or
encryption" and "we are already behind the times." The former statement
remains, at this date, unproven. The latter is true enough. Collection
societies need to solicit the opinions of the online community, to say
nothing of modifying their explantions for real world clarity and
understanding. Or maybe they're afraid that if we really knew how they
operate, they would have no business? We feel all three of the big
performance collection groups could stand doing entire redesigns of
their web sites with their rank and file customers in mind.
Information on joining, how payments are determined and executed, as
well as information on how to license their catalog should be simple to
find (not to mention possible to do affordably and fairly). This is the
stuff that matters!
Next month we will dig into the oddly monopolistic Harry Fox Agency and
its parent, the National Music Publishers' Association, as well as take
a look at the major labels' answer to online music publishing
(Soundexchange) represented through its industry strongarm, the
Recording Industry Association of America.
As first reported in FezGuys #007, this is still a darned good resource:
A very practical Q&A series. Recommended.
For all things government-related to the subject:
The final word.
The FezGuys welcome critique, agreement, support and approbation.