Smoke and Mirrors: A Composer’s Dilemma

Along with the development of performing-rights licensing, artists (musicians and composers) and organizations have created a way to generate money with something that is intangible and primarily based on sound waves: music.  Though musicians traditionally value their creations as a means of expression and self-sacrifice for art’s sake, they too exist in the economic world in which even artists must make or receive some amount of compensation to survive. While performance-rights organizations are intended to provide royalties and music protection is based on copyright laws, composers are given little compensation for their efforts and often exploited in the name of business profits.

In William Velez’s article, Velez introduces a brief history of performing-rights licensing organizations (ASCAP, SESAC, BMI) and explains that there are advantages and disadvantages in regards to musicians and composers; however, the advantages were thought to be more beneficial for an artist. He mentions that SESAC, founded in 1930, was a for-profit organization that was created to protect its paying affiliates from being exploited by unlawful performances and distributions of their music and works. In 1994, SESAC merged their organization with technology and became capable of pinpointing all musical usage on radios along with watermarking audio recording; the constant tracking of music allowed for composers and musicians to track if their music was legally or illegally being consumed by people and other businesses. While there are some benefits that derive from performance-right licensing, along with copyright protection, composers are still given the “short end of the stick”.

For composers, the Copyright Act of 1909 seemed like some form of insurance that their creations would not be replicated or sold off on false claims for profit; the work may have a form of monetary compensation and self-value for the composer themselves. According to general attorney of ASCAP, Herman Finkelstein, a composer’s work may be perceived by some people as “not as property but rather…a personal right like the right of privacy, or the right to not be defamed”. This notion, whether it may be from a business, or person, devalues the composer and their creative expression in music by insinuating it (the work) may be used as pleased by anyone for personal or financial gain. In addition, the purpose of copyrights only offered a limited amount of legal protection to a composer; if the composer was unable to get an audience and receive recognition or revenue, then what is the point of copyright except for the personal right over that intangible work? Neither copyright nor performance-rights licensing would financially benefit a musician or composer unless their work would blossom and gain a large enough audience willing to buy rights or physical copies (Eg: sheet music or CDs) of the music. Of course, this leads into the route that an artist must work with both rights and licensing to move forward in order to market their goods for any compensation.

In one case, film/screen composers and songwriters are often employed under a contract that is “work for hire”; the composer is employed by a film producer and will create music (lyrics/ scores) for currency. Although the artist may be employed, there are plenty of rules and regulations that work in favor of the film industries finances over the rights of the artist. Leonard Zissu, general counsel for the Screen Composers’ Association (1946), states that due to the music being based on “work for hire”, the producer will have exclusive rights to the music created for said film and the composer will lose copyrights. In a recent ASCAP article, “Music, Money, Success & the Movies: Part Three,” Jeffrey and Todd Brabec reiterate that “the studio becomes the owner of all rights of copyright and is usually free to assign or license those rights to others”; however, composition royalties may be accepted within the contract. Of course, the composer is financially compensated a discussed and fixed sum for their written works and scores for the film. Yet the royalties the composer may receive is undercut by several other fees accrued by publishing and marketing said music to consumers.  For example, music business lawyer, Ned Shankman, shows that the charges of administration fees, marketing fees, foreign fees, and other charges could bring down the total royalties several thousand dollars that eventually goes back to the publishing record. What was once about a total sum of $35,000 for a written composition could plummet down all the way to $14,750, or even less, such as in Shankman’s example of “Sarah Swan and Her Music Publisher”.

Even so, there becomes an even larger cycle of abuse when these composers are typically required to rely on a performing-rights organization membership for their royalties back on a piece of work. Although film composers may have royalty rights from a contract, the composer is not in control of its publication and thus may never receive royalties from performance-rights organizations, such as ASCAP. The composer is thus left with few choices in order to publish their own music, either by a self-sustaining business or by the process of standard marketing business. In the end, most composers opt for the latter and must be willing to create a work for a producer, cut ties with its copyright, and trust on low royalties from performance-rights organizations who will exploit an artist by using their creations (music) for business profit.

–            Ashley Venegas


References

Brabec, Jeffrey and Todd Brabec. “Music, Money, Success & the Movies: Part Two.” ASCAP. https://www.ascap.com/help/music-business-101/music-money-success-movies/movies-part2 (accessed February 19, 2019).

Brabec, Jeffrey and Todd Brabec. “Music, Money, Success & the Movies: Part Three.” ASCAP. https://www.ascap.com/help/music-business-101/music-money-success-movies/movies-part3 (accessed February 19, 2019).

Finkelstein, Herman. “The Composer and the Public Interest. Regulation of Performing Right Societies.” Law and Contemporary Problems 19, no. 2 (1954): 275-93. doi:10.2307/1190491.

Ringer, Barbara A. “Film and Copyrights.” Journal of the University Film Association 23, no. 2 (1971): 35-61. http://0-www.jstor.org.lib.utep.edu/stable/20687123.

Shankman, Ned N. “A Brief Study of Legal Problems in the Music Business.” Music Educators Journal 63, no. 7 (1977): 154-55. http://0-www.jstor.org.lib.utep.edu/stable/3395251.

Velez, William. “Performing-Rights Collectives: Dinosaurs of the New Millennium?” In Reflections on American Music: The Twentieth Century and the New Millennium. New York: Pendragon Press, 2000.

Zissu, Leonard. “The Copyright Dilemma of the Screen Composer.” Hollywood Quarterly 1, no. 3 (1946): 317-20. doi:10.2307/1209289.

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