| Tell us about your law practice. What kind of cases attract your interest? We've
been doing a certain amount of class action work, both in and out of the entertainment
business. Of course, there has to be enough at state economically for use to be involved.
Even if we can find the right kind of cases - those that make institutional changes occur
- we like to do those. We also do general business in entertainment law and in settling
disputes. Sometimes copyright infringement actions as well.
In your opinion, what are the most important legal issues facing composers?
For starters, the current systems of work registration and collections worldwide should
weigh heavily in terms of composer concerns. I'm talking about the world's collecting
societies, the proper registration of works and the distribution of royalties.
Most composers operating under work-for-hire agreements leave registrations
to the studios and production companies. Some will make sure there's a cue sheet filled
with ASCAP, BMI, and SESAC, buts that's about it.
I'm afraid there's not adequate record keeping internationally. I'm concerned about who
is collecting revenue, how it's being collected, and whether it's being collected
adequately. I'm referring to performance and mechanical income, all of it.
As you know, American performing rights organizations (PROs) have
reciprocal agreements with collecting societies worldwide. Typically, a composer's PRO
deals on his or her behalf. Typically, a composer's PRO deals on his or her behalf. There
is no direct examination by composers of books kept overseas.
I'm concerned about the exchange of information and transparent dealing. Why shouldn't
a composer be allowed to make queries directly, especially as to proper registrations and
the administration of those works abroad?
What additional concerns should be on the minds of composers?
PRO accountability to its composers. There's also an issue as to what extent these
entities are truly democratic. It appears to me that their governing boards are
self-perpetuating.
If an institution is not exercising the democratic principles it
advertises, how might change be affected?
Well, you have to fight it internally. But it doesn't sound like there's much leverage
on the composer side.
Little, if any. Composers are the only work force in Hollywood without so
much as an advocacy group, much less an actual guild or union. It's no secret that people
without representation lose their rights. And composers have been surrendering for
decades.
In theory, composers might consider forming their own society, or go for direct
licensing deals. Of course, that might backfire. There is a great benefit to having a
unified performing rights society or two in terms of negotiation with licensees. The
problem is, many perceive the societies are skewed towards the popular songwriters because
they are controlled and chiefly populated by them. To the extent that the composers are in
the minority, it's an unfortunate fact of life.
Interestingly, there are no statistics available to support any assertion
that film and television composers are in the minority of royalty-earning PRO members.
Such information is forbidden. What we do know is that there is an 80% or 97% penalty
levied on a minute of song performed on American television. That is a fact. Following
through, voting powers are apportioned by earnings that are weighted by categories - not
the prevalence of what classifications of music are dominant on broadcast television.
Yes, it appears to be a conflict between classes. Arguably, composers are discriminated
against economically. Unfortunately, there's no equivalent civil rights application in
that the conflict is not racial or religious in nature.
Give our readers your assessment. If fundamental statistics about how music
is used in television and radio go undisclosed, how can a class of people being kept in
ignorance ever expect justice?
Has Film Music Magazine asked for such statistics?
Repeatedly. All such queries have been refused.
Has there been any response as to why?
That disclosure of such usage data "would create a competitive
disadvantage" between American PROs. No one believes that answer for a minute, in
that ASCAP, BMI,and SESAC know precisely what each other has on the air. For starters,
they have shared databases. Further, most cue sheets submitted listing music contained in
film and television programs and movies have works from both ASCAP and BMI repertories.
The response is evasive and disingenuous.
Well, I say that the two most important criteria for a rights society are
accountability and transparency to its members. If basic information is not forthcoming,
it ought to be. If it's not, there had better be a very good reason as to the
nondisclosure.
Let's move to the Alden & Rochelle case that set precedent affecting
film composers worldwide. The result of that case prevented ASCAP from collecting music
performance fees from music contained in films exhibited in American music theaters. Like
the punitive usage weightings we touched on, this decision flies in the face of standards
and practices throughout the world.
Actually, it's quite shocking and totally unfair. It's a historical vestige of
antitrust conduct on the part of ASCAP going back to the late 1940s.
Is there anything to be done about it?
Composers should be lobbying for a change in the ruling with the Justice Department and
Congressional leadership, perhaps individually and outside the auspices of a performing
rights society.
As we've observed, composers have no industrial representation to mount
such a lobby.
That's a fundamental problem with composers - they're not organized on any level of the
entertainment industry. You've got grips, camera operators, electricians, Teamsters,
actors, writers, and directors all represented on an industrial level.
And no composers in sight. Even the songwriters can muster some
meaningful advocacy from the SGA (Songwriters Guild of America).
I'm grateful that the Nashville Songwriters Association International [NSAI] is doing
its best to lobby on behalf of songwriters. But that still leaves composers out in the
cold.
What would you suggest?
The first thing that composers should do is get organized. And
it's a terribly important time right now because of all the legislation that is imminent
and necessary because of Internet delivery. The web is a great boon to the
promotion and delivery of music. And composers should have a voice in the monetization of
these new delivery systems insofar as their music is affected. There's a school of thought
that says record companies are no longer necessary in the traditional sense because
individuals can now enable distribution themselves. And there's a lot of truth to that.
Someone can go up on MySpace, get noticed immediately, generate some attention and begin
to make some serious money. We haven't really seen that breakthrough artist yet, but I'm
fairly confident it's going to be happening in the very near future.
How might this new model apply to film and television composers?
It's always music that leads the way. Next is audiovisual content. The technology is
getting to the point of supporting rapid distribution of sight and sound, which may become
the dominant method that motion pictures and television are delivered in the future. That
would be a good thing for everybody in the sense that it will make the distribution of
programming that much easier. Slowly but surely, DVDs will become a thing of the past,
just as VHS has seen its better days. There won't be Blockbuster stores as we know them in
the coming years.
And American composers, as a group, have been excluded from rights
participation in most if not all of those work-for-hire productions. The screenwriters,
the directors, the actors have all enjoyed a modicum of participation in the income
streams from videocassette and DVD sales and rentals. The fact that only composers are
excluded in the United States is wholly atypical of world standards and practices. And now
we face the further exclusion of composer participation via digital downloads, because a
Federal court has concluded there are no performance components in such transactions.
Never mind that 25 million households are still watching the content, just as they would
in a broadcast. What this means, potentially, is that a composer who could once make
a good living from scoring series television along with the public performance royalties
that followed may very well be excluded from ongoing participation in a digital world.
Composers will have to organize for change. The first thing is publicity. If one wants
to make things better, then the first thing is to get the story out there. Composers
should be on a network, a list-serve, where they're at least talking to each other.
Secondly, information must be promulgated to those who are in a position to make changes.
That includes people on the legislative side. It also means communicating with
policymakers wherever they may be, including the performing rights societies who are
themselves legislators of a sort. But composers must step up to the plate. They must
demand to be counted and make it clear that they want to participate on these boards -
they must be vociferous. Composers need to have relationships with members of the
traditional press to let them know what the particular issues are. The problem is,
musicians are habitually and traditionally insular and tend not to engage in talks
concerning business and law.
True. But more insular than actors or writers? I doubt it. Composers didn't
end up in such organizational disarray by accident. Many composers will tell you there are
penalties for those who speak-up - who choose a path other than insularity. But that's a
subject for a book and criminal investigations by the U.S. Department of Justice. If you
would, identify some additional issues facing composers.
Another big problem is that the deals are often so one-sided, in that there are buyouts
of so-called mechanical rights in audiovisual product. I think this is totally
inappropriate and not in accordance with world standards. Just the general notion of
performance buyouts is likewise detestable. As a work achieves economic success, why
shouldn't the composer who contributes to it be accounted to? That's in accordance with
world standards. But that's not the case in America.
And those factors, often motivated by fear, as to why most composers remain
silent?
It's because of the marketplace. Because of the way composers have allowed themselves
to be manipulated. With no representation, it's a buyer's market.
So it is with most actors. But they can still muster industrial
representation with the Screen Actors Guild (SGA).
But with composers, I understand there are situations where people are forced to give
up their credits to other composers. That's highly in appropriate. I understand the
cartoon industry is rife with entities - persons who have nothing to do with the creation
of the music getting a substantial share of the writer's performance royalties.
Of course, if such a composer raises the issue, that person doesn't work.
That's a problem for the wife and kids.
Right. So composers should be rallying and asking to be paid for
all sales of audiovisual product no matter where they're sold, and bringing this to
the attention of law makers The greatest hope and salvation of score composers is going to
come from the legislators NSAI has been successful in lobbying by going to Congress and
having songwriters traipse the halls with banjos and guitars - by entertaining them.
Composers would be likewise suited in utilizing that tactic
But again, we return to infrastructure, no composer organization to execute
what you're advocating. Especially when there are a handful of powerful songwriters and at
least one PRO ready to squelch any composer making such noises A veteran ASCAP board
member once told me that the songwriter's worst nightmare would be a viable composer
organization. I believe him, then as now.
There is obviously a gap between the 'haves" and the 'have-nots' of composers -
those who are earning six figures and more on film projects can shrug to the extent
that they're not collecting everything they're due. Still, if composers want to affect
change, some kind of organizational advocacy is necessary. And the
legislators are the key. |
