Issues Related to Performing Rights Organizations, 9253-9257 [2025-02418]
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Federal Register / Vol. 90, No. 26 / Monday, February 10, 2025 / Notices
V. Sanction
Where, as here, the Government has
met its prima facie burden of showing
that Respondent’s continued registration
is inconsistent with the public interest
due to its numerous violations
pertaining to controlled substances, the
burden shifts to Respondent to show
why it can be entrusted with a
registration. Morall, 412 F.3d. at 174;
Jones Total Health Care Pharmacy, 881
F.3d at 830; Garrett Howard Smith,
M.D., 83 FR 18882 (2018). The issue of
trust is necessarily a fact-dependent
determination based on the
circumstances presented by the
individual respondent. Jeffrey Stein,
M.D., 84 FR 46968, 46972 (2019); see
also Jones Total Health Care Pharmacy,
881 F.3d at 833. Moreover, as past
performance is the best predictor of
future performance, DEA
Administrators have required that a
registrant who has committed acts
inconsistent with the public interest
must accept responsibility for those acts
and demonstrate that it will not engage
in future misconduct. Jones Total
Health Care Pharmacy, 881 F.3d at 833
(citing authority including Alra Labs.,
Inc. v. Drug Enf’t Admin., 54 F.3d 450,
452 (7th Cir. 1995) (‘‘An agency
rationally may conclude that past
performance is the best predictor of
future performance.’’). ‘‘[T]hat
consideration is vital to whether
continued registration is in the public
interest.’’ MacKay v. Drug Enf’t Admin.,
664 F.3d 808, 820 (10th Cir. 2011). A
registrant’s acceptance of responsibility
must be unequivocal. Jones Total Health
Care Pharmacy, 881 F.3d at 830–31. In
addition, a registrant’s candor during
the investigation and hearing has been
an important factor in determining
acceptance of responsibility and the
appropriate sanction. Id. Further, DEA
Administrators have found that the
egregiousness and extent of the
misconduct are significant factors in
determining the appropriate sanction.
Id. at 834 and n.4. DEA Administrators
have also considered the need to deter
similar acts by the respondent and by
the community of registrants. Jeffrey
Stein, M.D., 84 FR at 46972–73.
Regarding these matters, Respondent
did not testify, and there is no
indication in the record that Respondent
takes responsibility, let alone
unequivocal responsibility, for the
founded, egregious violations involving
his controlled substance
prescribing.36 Supra sections II, III.C,
and IV; cf. Osmin A. Morales, 88 FR
75,309, 75,311–12. Instead,
Respondent’s case consists of one
baseless or irrelevant argument after
another, often seemingly to deflect
attention away from his unlawful
controlled substance prescribing. E.g.
Tr. 672–73 (Respondent’s closing
argument statements that he used
CURES to ‘‘check[ ]’’ whether a patient
is ‘‘taking medications . . . prescribed
to him’’ and that the ‘‘dozens, if not
hundreds of these CURES printouts’’
show that Respondent ‘‘was carefully
monitoring the medication that the
patients were taking and carefully
issuing prescriptions and making sure
patients were taking the drugs at the
right time and in the correct
quantities’’); 37 RD, at 37 (‘‘Despite
Respondent’s efforts at misdirection, the
evidence is overwhelming that
Respondent prescribed high-dosage
opioids . . . and other powerful
controlled substances, without a
medical diagnosis to justify the
prescription—there was, inter alia, no
meaningful medical or mental health
history taken, no adequate physical
examination conducted, and no pain
management plan recorded.’’).
The interests of specific and general
deterrence weigh in favor of revocation.
Respondent has not convinced the
Agency that he understands that his
controlled substance prescribing fell
short of the applicable standard of care,
and that substandard controlled
substance prescribing has serious
negative ramifications for the health,
safety, and medical care of individuals
who come to him for medical treatment.
See, e.g., Garrett Howard Smith, M.D.,
83 FR at 18910 (collecting cases) (‘‘The
egregiousness and extent of the
misconduct are significant factors in
determining the appropriate sanction.’’).
As such, it is not reasonable to believe
that Respondent’s future controlled
substance prescribing will comply with
legal requirements. Indeed,
Respondent’s own actions suggest that
he has no intention of complying fully
with the CSA and the California
standard of care in the future. Tr. 537–
38 (Respondent inexplicably suggesting
that he ‘‘did nothing wrong’’ after his
medical records improved).
Further, given the foundational nature
and vast number of Respondent’s
violations, a sanction less than
revocation would send a message to the
existing and prospective registrant
community that compliance with the
36 Respondent’s admitting ‘‘issues with his
recordkeeping’’ is not accepting responsibility, let
alone unequivocally accepting responsibility. Supra
n.34.
37 CURES only shows that a controlled substance
prescription was filled. It does not show what then
happened to the pills in that filled controlled
substance prescription.
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9253
law is not a condition precedent to
maintaining a registration.
Accordingly, the Agency shall order
the sanction the Government requested,
as contained in the Order below.
Order
Pursuant to 28 CFR 0.100(b) and the
authority vested in me by 21 U.S.C.
824(a)(4), I hereby revoke DEA
registration No. BB4591839 issued to
David Bockoff, M.D. Further, pursuant
to 28 CFR 0.100(b) and the authority
vested in me by 21 U.S.C. 823(g)(1), I
hereby deny any pending application of
David Bockoff, M.D., for a DEA
Registration in California. This Order is
effective March 12, 2025.
Signing Authority
This document of the Drug
Enforcement Administration was signed
on February 3, 2025, by Acting
Administrator Derek Maltz. That
document with the original signature
and date is maintained by DEA. For
administrative purposes only, and in
compliance with requirements of the
Office of the Federal Register, the
undersigned DEA Federal Register
Liaison Officer has been authorized to
sign and submit the document in
electronic format for publication, as an
official document of DEA. This
administrative process in no way alters
the legal effect of this document upon
publication in the Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug
Enforcement Administration.
[FR Doc. 2025–02421 Filed 2–7–25; 8:45 am]
BILLING CODE 4410–09–P
LIBRARY OF CONGRESS
U.S. Copyright Office
[Docket No. 2025–1]
Issues Related to Performing Rights
Organizations
U.S. Copyright Office, Library
of Congress.
ACTION: Notice of inquiry.
AGENCY:
The U.S. Copyright Office is
collecting information regarding issues
related to performance rights
organizations (‘‘PROs’’) and the
Copyright Act’s public performance
right for musical works. It is initiating
this inquiry at Congress’s request to
gather information on questions related
to the increase in the number of PROs
and the licensing revenue distribution
practices of PROs.
DATES: Written comments must be
received no later than 11:59 p.m.
SUMMARY:
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Federal Register / Vol. 90, No. 26 / Monday, February 10, 2025 / Notices
Eastern Time on April 11, 2025. Written
reply comments must be received no
later than 11:59 p.m. Eastern Time on
May 27, 2025.
ADDRESSES: For reasons of governmental
efficiency, the Copyright Office is using
the regulations.gov system for the
submission and posting of public
comments in this proceeding. All
comments are therefore to be submitted
electronically through regulations.gov.
Specific instructions for submitting
comments are available on the
Copyright Office’s website at https://
copyright.gov/policy/pro-issues/. If
electronic comment submission is not
feasible due to lack of access to a
computer or the internet, please contact
the Copyright Office using the contact
information below for special
instructions.
FOR FURTHER INFORMATION CONTACT:
Rhea Efthimiadis, Assistant to the
General Counsel, by email at meft@
copyright.gov or telephone at 202–707–
8350.
SUPPLEMENTARY INFORMATION:
I. Background
a. Public Performance Right for Musical
Works and the Formation of PROs
Musical work copyright owners (e.g.,
songwriters or music publishers) have
enjoyed the exclusive right to perform
their works publicly since 1897.1 The
variety of ways those works are
performed, however, has created
practical challenges associated with the
licensing of the right. As one court
summarized the issue:
The users of music, such as theaters, dance
halls and bars, were so numerous and
widespread, and each performance so
fleeting an occurrence, that no individual
copyright owner could negotiate licenses
with users of his music, or detect
unauthorized uses. On the other side of the
coin, those who wished to perform
compositions without infringing the
copyright were, as a practical matter, unable
to obtain licenses from the owners of the
works they wished to perform.2
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Performing rights organizations
(‘‘PROs’’) were established to address
these challenges. Broadly, a PRO
1 Act of Jan. 6, 1897, ch. 4, 29 Stat. 481; see also
17 U.S.C. 106(4).
2 Columbia Broad. Sys., Inc. v. Am. Soc’y of
Composers, Authors and Publishers (‘‘ASCAP’’),
400 F. Supp. 737, 741 (S.D.N.Y. 1975), rev’d sub
nom. Columbia Broad. Sys., Inc. v. ASCAP, 562
F.2d 130 (2d Cir. 1977), rev’d sub nom. Broad.
Music, Inc. (‘‘BMI’’) v. Columbia Broad. Sys., Inc.,
441 U.S. 1 (1979); see also Columbia Broad. Sys.,
Inc., 441 U.S. at 5 (describing how ‘‘as a practical
matter it was impossible for the many individual
copyright owners to negotiate with and license [the
public performance right to] users and to detect
unauthorized uses’’ of musical works).
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contracts with songwriters and
publishers for the authority to license
the public performance rights in their
musical works, and then provides
collective licenses of those rights to
users, allowing them to publicly
perform the works in the PRO’s
repertoire.3 Such licenses are
significantly more efficient for
businesses, songwriters, and publishers
when compared to song-by-song
licensing and enforcement.4
b. Evolution of the U.S. PRO Market and
Their Competition for Members
After a long period of stability, the
number of PROs in the United States
has increased in recent years. The first
U.S. PRO was ASCAP, established in
1914, followed by SESAC in 1931 and
BMI in 1939.5 More recently, three new
PROs have been formed: Global Music
Rights (or ‘‘GMR’’) in 2013, PRO Music
Rights in 2018, and AllTrack in 2019.6
3 See Donald S. Passman, All You Need to Know
About the Music Business 230–31 (11th ed. 2023)
(‘‘Passman’’); see also Makan Delrahim, Ass’t Att’y
Gen., Antitrust Div., U.S. Dep’t of Just., Statement
of the Dep’t of Just. on the Closing of the Antitrust
Div.’s Rev. of the ASCAP and BMI Consent Decrees
1 (Jan. 15, 2021) (‘‘Antitrust 2021 Closing
Statement’’), https://www.justice.gov/atr/page/file/
1355391/dl.
4 See U.S. Copyright Office, Copyright and the
Music Marketplace 112 (2015) (‘‘Music Marketplace
Report’’), https://www.copyright.gov/policy/
musiclicensingstudy/copyright-and-the-musicmarketplace.pdf.
5 Since 1941, ASCAP and BMI have been subject
to separate ‘‘consent decrees’’ that restrict their
licensing practices and related operations. See id.
at 34–42 (discussing consent decrees). The Office
notes that the Department of Justice’s Antitrust
Division evaluates and oversees these consent
decrees, and antitrust issues are outside the scope
of this Notice of Inquiry.
6 See Bruce Pollock, A Friend in the Music
Business: The ASCAP Story 14 (2014) (‘‘Pollock’’);
BMI, BMI’s Timeline Through History, https://
www.bmi.com/about/history (last visited Jan. 22,
2025); GMR, About Us, https://
globalmusicrights.com/about (last visited Jan. 22,
2025); SESAC, About Us, https://www.sesac.com/
about/ (noting that Paul Heinecke founded SESAC
in February 1931) (last visited Jan. 22, 2025); Marc
Schneider, GMR, About Us, https://
globalmusicrights.com/about (last visited Jan. 22,
2025); InsideRadio, Upstart Music Licensing
Company Pro Music Rights Goes Public (July 22,
2022), https://www.insideradio.com/free/upstartmusic-licensing-company-pro-music-rights-goespublic/article_764bb32e-0987-11ed-9d35ebdda2accc56.html; see also Pollock at 40
(identifying SESAC’s founding as 1930); Jason
Lipshutz, SESAC at 80, The Hollywood Reporter
(Apr. 13, 2010), https://
www.hollywoodreporter.com/business/businessnews/sesac-80-22598/ (noting that ‘‘SESAC was
founded in 1930 as a means of securing American
royalties for European publishers,’’ but that
‘‘SESAC quickly expanded to include American
music and began signing songwriters in 1970’’).
This is not necessarily an exhaustive list, including
because other PROs have ceased operations. See,
e.g., Pollock at 7 (noting that the French PRO,
SACEM, opened a U.S. branch in 1911, but ‘‘failed
to generate a spark of interest’’); Robert Israel
Goodman, Comment, Music Copyright Associations
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These organizations compete with
each other for songwriter and publisher
members through the license terms and
programs they offer.7 As the Office has
previously recognized, ‘‘[s]ongwriters
and publishers have highlighted the
importance of the existence of multiple
PROs in the music marketplace,
indicating that they carefully choose the
PRO with which they affiliate based on
their perception of which organization
will bring them the most benefit.’’ 8
PROs offer different royalty rates to their
members based on several factors,
including: the number of licensees
paying royalties; the rates charged to
those licensees; 9 the administrative fee
charged for the PRO’s services; the
PRO’s for-profit or not-for-profit
status; 10 and the methodologies used for
and the Antitrust Laws, 25 Ind. L.J. 168, 170 (1950)
(referencing former PROs, such as the Society of
Jewish Composers and Israel Composers, Authors,
and Publishers, Inc.).
7 Nonmonetary ways by which PROs may
compete include their educational, creative, and
promotional offerings, such as showcases,
performance opportunities at festivals and
conferences, or panels or ‘‘songwriting awards,
professional workshops, hands-on tutorials, and
networking events.’’ Pollock at 2; BMI, BMI Member
FAQs, https://www.bmi.com/faq/category/about
(last visited Jan. 22, 2025) (discussed under header
‘‘What extra services does BMI offer to members?’’);
see also Susan P. Butler, Collective Rights
Management Practices Around the World 20–21
(Apr. 2020), https://www.copyright.gov/policy/
unclaimed-royalties/cmo-full-report.pdf (‘‘Some
CMOs [collective rights management organizations,
a term which includes PROs] perform certain
educational activities as ways to compete with
other CMOs for members or to provide a better
service to their own members. Some CMOs produce
creative conferences or host songwriter ‘camps’ to
share information or promote creative
collaborations.’’).
8 Letter from U.S. Copyright Office to the
Honorable Doug Collins, Vice-Chairman,
Subcommittee on Courts, Intellectual Property and
the internet, United States House of Representatives
26 (Jan. 29, 2016) (‘‘Fractional Licensing Letter’’),
https://copyright.gov/policy/pro-licensing.pdf.
9 See Passman at 230, 235–36 (discussing PROs
bargaining power with licensees); William
Livingston, General Manager, Gemeny Winery and
Vineyards LLC, Statement in Response to the Dep’t
of Just.’s Request for Public Comments Concerning
the ASCAP and BMI Consent Decrees 1 (June 21,
2019), https://media.justice.gov/vod/atr/
ascapbmi2019/pc-300.pdf (noting that ‘‘[a]ll three
companies ‘ASCAP, BMI and SESAC’ give us
different rates to pay . . . .’’); Ray Waddell, The
$300 Million Comeback: Irving Azoff Teams With
MSG’s James Dolan to Create Intriguing Music
Company, Billboard (Sept. 6, 2013), https://
www.billboard.com/music/music-news/the-300million-comeback-irving-azoff-teams-with-msgsjames-dolan-to-5687155/ (reflecting that SESAC is
able to charge higher rates than ASCAP and BMI).
10 While both ASCAP and BMI were not-for-profit
organizations for many decades, ASCAP is now the
only PRO operating on a not-for-profit basis.
ASCAP, ASCAP Annual Report 2023 2 (2024),
https://www.ascap.com/∼/media/site-pages/annualreport/2023/2023-ascap-annual-report.pdf; see also
Mike O’Neill, Quarterly Distribution Update, BMI
(Feb. 2023), https://www.bmi.com/distribution/
letter/587887 (reflecting BMI’s first distribution as
a for-profit business).
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royalty calculations, which may provide
higher payments based on the relative
commercial value of a musical work.11
c. PROs’ Licensing Practices
PROs provide licenses for a wide
variety of performances, including
‘‘terrestrial, satellite, and internet radio,
on-demand music streaming services,
website and television uses, . . . bars,
restaurants, and other commercial
establishments, and live
performances,’’ 12 as well as uses by
more niche businesses, such as roller
rinks 13 and laser shows.14 They
generally offer different license rates
depending on the type of business or
use being licensed. ‘‘For example, rates
for restaurants, nightclubs, bars and
similar establishments depend on
whether the music is live or recorded,
[is] audio only or audio visual, the
number of nights per week music is
offered, whether admission is charged
and several other factors.’’ 15
A standard practice for PROs is to
offer licenses on a non-exclusive basis,
which means that businesses have the
option of obtaining performance
licenses directly from publisher or
songwriter copyright owners, although
it appears that instances of such direct
licensing has been infrequent.16 Most
licensees that contract with PROs obtain
a blanket license 17 to all works, or
shares of works, in the PRO’s
repertoire.18 The royalty fee charged is
‘‘ordinarily a percentage of . . . [the
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11 See
Passman at 234–35 (noting that PROs
‘‘change their distribution rules on a regular basis’’
and certain performance bonuses ‘‘also affect the
results’’ of those distributions); see also, e.g.,
ASCAP, ASCAP’s Survey and Distribution System:
Rules & Policies (Oct. 2022), https://
www.ascap.com/∼/media/files/pdf/members/
governing-documents/ascap-survey--distributionrules--10322.pdf; BMI, How We Pay Royalties: Live
Concert Royalties, https://www.bmi.com/creators/
royalty/live_concert_royalties (last visited Jan. 22,
2025).
12 Music Marketplace Report at 150.
13 ASCAP, ASCAP Music License Agreements and
Reporting Forms, https://www.ascap.com/musicusers/licensefinder (listing twenty-six separate
license agreements) (last visited Jan. 22, 2025).
14 BMI, Music License Agreements and Reporting
Forms, https://www.bmi.com/licensing/forms
(listing fifty separate license agreements) (last
visited Jan. 22, 2025).
15 BMI, Music Licensing FAQs, https://
www.bmi.com/licensing/faqs (click on ‘‘Q: How
much is a BMI music license and how is that fee
determined?’’) (last visited Jan. 22, 2025).
16 See BMI v. Pandora Media, Inc., 140 F. Supp.
3d 267, 275 (S.D.N.Y. 2015).
17 Music Marketplace Report at 33. PROs may
offer other license types, including per-program or
per-segment licenses. Id.
18 A PRO’s ‘‘repertoire’’ or ‘‘repertory’’ is
sometimes called its ‘‘catalog.’’ See GMR, Catalog
Homepage, https://globalmusicrights.com/Catalog
(last visited Jan. 22, 2025).
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licensee’s] revenues or a flat dollar
amount.’’ 19
As previously described by the Office,
‘‘the practice of licensing only partial
interests in co-owned works’’ is called
‘‘fractional’’ licensing and stands in
contrast to ‘‘100-percent’’ licensing,
which entails ‘‘granting full rights to use
a co-owned work based upon a partial
interest in the work.’’ 20 Because
musical works are frequently created by
multiple authors (i.e., songwriters,
including composers and lyricists),21
co-ownership issues can play an
important role when licensing musical
works. Depending on the circumstances
of their creation, musical works with
multiple authors may be considered
joint works.22 While the default rule is
that joint authors own equal and
undivided interests in a copyrightprotected work,23 musical work joint
authors often agree to alter that rule,
including to instead divide the
ownership shares unequally and to
permit separate licensing of those
shares.24
Fractional licensing is often cited by
licensees as a cause of administrative
frustration and increased costs.25 For
example, if a musical work has multiple
songwriters and publishers who have
authorized different PROs to license
their separate fractional interests, then
any PRO’s ability to offer a license is
19 Columbia Broad. Sys., Inc., 441 U.S. at 5;
United States v. ASCAP, 627 F.3d 64, 68 (2d Cir.
2010) (‘‘A blanket license is a license that gives the
licensee the right to perform all of the works in the
repertory for a single stated fee that does not vary
depending on how much music from the repertory
the licensee actually uses.’’).
20 Fractional Licensing Letter at 1–2.
21 As the Office has previously reported, in
addition to multiple songwriters who may work on
a single work, a ‘‘song may incorporate samples of,
or remix, preexisting works’’ owned by additional
copyright owners. Id. at 8–9.
22 See id. at 4–8. In some circumstances, the work
may be considered a derivative work or
compilation. Id.
23 17 U.S.C. 201(a) (‘‘The authors of a joint work
are coowners of copyright in the work.’’); see also
Fractional Licensing Letter at 6–7 (discussing this
topic further).
24 Fractional Licensing Letter at 9. When signing
a standard publishing contract, a songwriter will
‘‘assign[ ] the entirety of his or her copyright interest
in a composition or catalog of compositions to a
publisher in exchange for the publisher’s
administrative services and a share of revenues,’’
but the songwriter will retain the ability to collect
his or her share of royalties directly from their
chosen PRO. Id. at 11.
25 See, e.g., Brief of Television Music License
Committee as Amici Curiae Supporting Appellant
at 28, United States v. BMI, 720 F. App’x 14 (2d
Cir. 2017) (No. 16–3830) (suggesting that fractional
licensing would be ‘‘costly’’ and ‘‘time consuming’’
for local broadcasters); Brief for Consumer Action
and Public Knowledge as Amici Curiae Supporting
Appellant at 3, United States v. BMI, 720 F. App’x
14 (2d Cir. 2017) (No. 16–3830) (stating that
fractional licensing makes it ‘‘harder and more
expensive for music services to license songs’’).
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limited to the fractional interests that
the PRO has obtained.26 In that case, the
entity that intends to publicly perform
a particular musical work must confirm
that it has obtained a license for all of
the fractional interests in the work,
which may require licenses from
multiple PROs.27 Otherwise, that user
‘‘may face infringement liability’’ for
publicly performing the work.28
While the practice of fractional
licensing has caused frustrations for
some licensees, it has encouraged
competition among the different PROs
for songwriters and publishers.29 The
Office previously noted that if PROs
were forced to offer 100-percent
licenses, doing so ‘‘would seemingly
vitiate important principles of copyright
law, interfere with creative
collaborations among songwriters,
negate private contracts, . . .
impermissibly expand the reach of the
consent decrees,’’ and ‘‘could also
severely undermine the efficacy of
[PROs]’’ and their ability to ‘‘grant
blanket licenses.’’ 30
Information regarding what works are
covered by a PRO’s blanket license is
not always publicly available. The
largest U.S. PROs do publicly disclose
the works in their respective
repertoires.31 For example, in 2020,
ASCAP and BMI debuted
‘‘SONGVIEW,’’ an online ‘‘joint song
data platform,’’ that ‘‘reconcile[s]
songwriter and publisher information’’
between those two PROs.32 If a musical
26 See
Fractional Licensing Letter at 10–15.
States v. BMI, 207 F. Supp. 3d 374, 375
(S.D.N.Y. 2016), aff’d, 720 F. App’x 14 (2d Cir.
2017) (summary order) (‘‘a music user, before
performing any multi-owner work in a PRO’s
repertory, would need a license to [all] the
fractional interests held by each of the work’s coowners’’).
28 Fractional Licensing Letter at 9; see also
Columbia Broad. Sys., Inc., 441 U.S. at 18 (‘‘Those
who would use copyrighted music in public
performances must secure consent from the
copyright owner or be liable at least for the
statutory damages for each infringement and, if the
conduct is willful and for the purpose of financial
gain, to criminal penalties.’’).
29 Fractional Licensing Letter 19, 23–25.
30 Id. at 3, 13.
31 See ASCAP, ASCAP Repertory Search, https://
www.ascap.com/repertory (last visited Jan. 22,
2025); BMI, SONGVIEW, https://
repertoire.bmi.com/ (last visited Jan. 22, 2025);
SESAC, Search Repertory, https://www.sesac.com/
repertory/ (last visited Jan. 22, 2025) (including a
link to download SESAC’s entire repertory); GMR,
Catalog Homepage, https://globalmusicrights.com/
Catalog (last visited Jan. 22, 2025); see also GMR,
Request Full Catalog, https://
globalmusicrights.com/CatalogRequest (last visited
Jan. 22, 2025).
32 Ed Christman, Who Owns That Song? ASCAP
& BMI’s New Joint Data Platform Will Tell You,
Billboard (Dec. 21, 2020), https://
www.billboard.com/pro/ascap-bmi-joint-databasesongview/.
27 United
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work’s rights are not fully licensed by
ASCAP and BMI, SONGVIEW will
indicate what percentage of rights are
outside the control of these two PROs
and may also indicate which other PROs
control the remaining rights.33 Two
other PROs, SESAC and GMR, provide
web pages dedicated to their respective
repertoires along with the option to
acquire their repertoire information in
bulk.34
Nevertheless, the information in these
databases and websites may include
inaccuracies as a result of changes in the
PRO’s membership 35 and the fact that
some data is provided by third parties,
including songwriters and publishers.36
The largest U.S. PROs disclose this fact,
disclaiming any guarantees or
warranties.37 At the same time, some
33 See Inside Radio, ASCAP, BMI Launch Music
Data Platform With Copyright Info For Millions of
Songs (Dec. 21, 2020), https://
www.insideradio.com/free/ascap-bmi-launchmusic-data-platform-with-copyright-info-formillions-of-songs/article_b3e0b200-43ab-11eb-ba2713dee78eb249.html (‘‘[I]f a song is reconciled in
Songview between ASCAP and BMI and there are
shares from another PRO involved in the work,
such as SESAC or GMR, then the system will list
those shares as ‘Other’ or will reflect that the
ASCAP and BMI shares don’t add up to 100%. In
addition, writer affiliations are displayed and there
is also an indication that there are non-ASCAP and
BMI publishers involved with that work.’’).
34 SESAC, Search Repertory, https://
www.sesac.com/repertory/ (last visited Jan. 22,
2025) (including a link to download SESAC’s entire
repertory); GMR, Catalog Homepage, https://
globalmusicrights.com/Catalog (last visited Jan. 22,
2025); GMR, Request Full Catalog, https://
globalmusicrights.com/CatalogRequest (last visited
Jan. 22, 2025).
35 Songwriters can leave ASCAP and BMI every
two years. ASCAP, Compendium of ASCAP Rules
and Regulations, and Policies Supplemental to the
Articles of Association sec. 1.11.1 (Aug. 14, 2023),
https://www.ascap.com/∼/media/files/pdf/
members/governing-documents/ascapcompendium.pdf; BMI, Affiliation Agreement Info,
https://www.bmi.com/creators/agreement (last
visited Jan. 22, 2025).
36 See, e.g., ASCAP, ASCAP Repertory Search—
Terms of Use Agreement, https://www.ascap.com/
help/legal/ace-terms-of-use (noting that
‘‘information contained in ASCAP Repertory Search
has been supplied to ASCAP, and is aggregated
from, a variety of third party sources’’) (last visited
Jan. 22, 2025).
37 Id. (noting that information in ASCAP’s
database ‘‘changes on a continual basis, and as with
any information database, there may be
inaccuracies or delays in updating the information’’
and including a disclaimer related to use of its
database); BMI, Disclaimer, https://
repertoire.bmi.com/Main/DisclaimerOnly (‘‘BMI has
high confidence in the accuracy of the data we
provide, which is obtained from rights holders who,
as royalty recipients, have every incentive to
provide reliable data,’’ though ‘‘BMI cannot give a
blanket guarantee regarding the accuracy of the data
. . . .’’) (last visited Jan. 22, 2025); BMI, Terms and
Conditions of Use, https://www.bmi.com/legal/
entry/terms_and_conditions_of_use (noting that
‘‘[t]he information contained in the BMI Searchable
Song Title Databases have been provided to BMI
from a variety of sources, and BMI makes no
warranties or representations whatsoever with
respect to the accuracy or completeness of the
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PROs represent that they will not bring
litigation against those relying in good
faith on their publicly available
repertoire data.38
d. PROs’ Usage Tracking and Royalty
Distribution Practices
To accurately distribute royalties,
PROs must track the musical works
performed by their licensees. This may
be based on licensee- or artist-based
reporting (including by providing
playlists, program guides, cue sheets, or
setlists).39 It also may involve the PRO’s
information in the BMI Searchable Song Title
Databases other than to determine what musical
compositions are licensed by BMI through the last
update’’ and ‘‘BMI does not warrant or represent
that any BMI content that you may access at or
through a BMI site or service is current, accurate or
complete’’) (last visited Jan. 22, 2025); SESAC,
Search Repertory, https://www.sesac.com/
repertory/ (‘‘As search results will contain
information provided to SESAC by the songwriters
and publishers that SESAC represents, SESAC
makes no representations and/or warranties with
respect to the accuracy or completeness of the
information found within the search results, though
SESAC has no reason to believe that the
information found within the search results is
inaccurate or incomplete.’’ (text displayed in a popup window)) (last visited Jan. 22, 2025); GMR,
Terms of Use, https://globalmusicrights.com/
TermsOfUse (‘‘The information contained in the
[GMR] Database changes on a continual basis, and
as with any information database, there may be
inaccuracies or delays in updating the information.
Although [GMR] uses reasonable efforts to update
the [GMR] Database and improve the accuracy of
the information contained therein, [GMR] makes no
guarantees, warranties or representations of any
kind with regard to and cannot ensure the accuracy,
completeness, timeliness, quality or reliability of
any information made available on and through the
[GMR] Database.’’) (last visited Jan. 22, 2025).
38 BMI, Disclaimer, https://repertoire.bmi.com/
Main/DisclaimerOnly (‘‘Businesses that take out a
BMI license can be assured that BMI will not bring
an infringement action against a licensee that relies
on the information contained in the data
platform. . . . Additionally, BMI will not sue an
individual or business for infringement for the
performance of music in which BMI has an interest
if, when that music is performed, it was not listed
in the data platform.’’) (last visited Jan. 22, 2025);
GMR, Request Full Catalog, https://
globalmusicrights.com/CatalogRequest (‘‘Global
Music Rights will not sue anyone for copyright
infringement for performances of these
compositions unless they appear in this catalog at
the time of performance.’’) (last visited Jan. 22,
2025); SESAC, Search Repertory, https://
www.sesac.com/repertory/ (‘‘SESAC uses
reasonable efforts to keep the information contained
in its repertory database current and will grant
Users of this Repertory Search a forty-five (45) day
grace period beginning upon the date that a musical
work is first posted to SESAC’s repertory database
to obtain from SESAC a license covering the use of
that musical work, during which forty-five (45) day
period SESAC will make no claims of copyright
infringement against the User; provided, however,
that the User has acted in good faith and was
unaware that the musical work is contained within
SESAC’s repertory.’’) (text displayed in a pop-up
window)) (last visited Jan. 22, 2025).
39 See, e.g., Bob Kohn, Kohn on Music Licensing
1241–42 (5th ed. 2019); Passman at 232–34;
ASCAP, ASCAP Payment System: Identifying
Performances, https://www.ascap.com/help/
royalties-and-payment/payment/identifying (last
visited Jan. 22, 2025).
PO 00000
Frm 00032
Fmt 4703
Sfmt 4703
monitoring of performances on certain
mediums, such as on broadcast or cable
television or terrestrial or satellite
radio.40
In certain circumstances, accurate
usage data may be unavailable or
economically inefficient to obtain. PROs
may then rely on proxy data to estimate
usage.41 This proxy data may come from
a census (where a ‘‘complete count[ ] of
performances in a medium’’ has been
made) or sample surveys (where the
PRO ‘‘tak[es] a representative crosssection of the performances on [a]
medium’’).42
In addition to the number of times a
musical work has been performed, other
factors affect the royalties that a PRO
distributes to its members. As noted
above, a PRO may charge different rates
based on the category of use (e.g.,
terrestrial and satellite radio, television,
cable, audiovisual streaming services,
audio streaming services, concert
venues, etc.).43 Additional distinctions
may be made within any of these
categories of uses, e.g., the royalty for
musical works performed on a
television program may depend on
whether the use was on local or network
television or used as a featured
performance, theme song, or
background music (or underscore).44 In
some circumstances, PROs may also
distribute royalty bonuses for hit songs
or popular standards.45
With respect to live performances at
larger venues, some PROs have
historically only paid royalties for those
musical works performed at the topgrossing tours and festivals.46 For
40 See
Passman at 233–34.
at 233; BMI, How We Pay Royalties, https://
www.bmi.com/creators/royalty/general_information
(‘‘[I]n cases where performance data is not available
or is incomplete for any of the sources from which
BMI collects fees, BMI may distribute those fees
against performances from a source or sources
where sufficient data is available.) (last visited Jan.
22, 2025).
42 ASCAP, Royalties and Payment: Frequently
Asked Questions, https://www.ascap.com/help/
royalties-and-payment (last visited Jan. 22, 2025).
43 See generally, ASCAP, ASCAP’s Survey and
Distribution System: Rules & Policies (Oct. 2022),
https://www.ascap.com/∼/media/files/pdf/
members/governing-documents/ascap-survey-distribution-rules--10322.pdf.
44 Jeffery Brabec & Todd Brabec, Music, Money,
and Success: The Insider’s Guide to Making Money
in the Music Business 388–91, 397–400 (8th ed.
2018) (‘‘Brabec’’) (providing an overview of
television royalty payment formulas for ASCAP and
BMI).
45 Id. at 357; see also Passman at 234 (reflecting
that PROs may pay bonuses for popular songs).
46 Brabec at 394 (noting that ‘‘ASCAP conducts a
census survey (100% pickup) of all songs
performed in the 300 largest concert tours and
festivals in the United States, as well as all songs
at a dozen or so selected venues . . . .’’); Passman
at 234 (‘‘The societies pay based on domestic
concert performances, but it’s only for the top three
41 Id.
E:\FR\FM\10FEN1.SGM
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Federal Register / Vol. 90, No. 26 / Monday, February 10, 2025 / Notices
music venues engaged in the public
performance of musical works ‘‘have
reported receiving demands for royalties
from new entities claiming to represent
songwriters, and threatening litigation if
the demands are not met.’’ 51 It adds
that, ‘‘[c]onsidering that the possibility
of substantial statutory copyright
damages poses an existential risk for
most bars, restaurants, and other small
businesses, many feel compelled to pay
these entities on top of what they
already pay for blanket licenses from the
traditional PROs.’’ 52
The Office is requesting public
II. Congressional Request and Subjects
comment on the following topics:
of Inquiry
1. To what extent, if any, have there
been increased financial and
In September 2024, the Copyright
administrative costs imposed on
Office received a letter from three
licensees associated with paying
members of the House Judiciary
royalties to additional PROs;
Committee relaying concerns over (1)
2. Factors that may be contributing to
the increase of PROs and (2) difficulties
regarding how to ‘‘assess how efficiently the formation of new PROs; and
3. Recommendations on how to
PROs are distributing general licensing
improve
clarity and certainty for entities
revenue, based on publicly available
data.’’ 49 The term ‘‘‘[g]eneral licensee’ is seeking to obtain licenses from PROs to
publicly perform musical works.
an umbrella term referring to the
hundreds of thousands of bars,
B. General Licensing Revenue
restaurants, hotels, ice and roller skating Distribution Methods
rinks, theme parks and other ‘brick and
With respect to concerns regarding
mortar’ businesses . . . that are not TV,
revenue distribution, the Congressional
radio or audio and audio-visual
Request states that ‘‘it is difficult to
streaming platforms.’’ 50 The letter asked assess how efficiently PROs are
the Office to gather information
distributing general licensing revenue
regarding these issues. With this notice, based on publicly available data,’’
the Office is soliciting input to aid
including ‘‘how accurately lesser known
Congress’s consideration of these issues and independent artists as well as
and invites written comments on the
smaller publishers are being
subjects of inquiry below.
compensated compared to widely
popular artists and major publishers.’’ 53
A. The Increase in PROs
The Office is requesting public
The Congressional Request states that comment on the following topics:
bars, restaurants, stores, hotels, and
4. How PROs currently gather
information concerning musical works
hundred grossing tours and festivals . . . .’’); see
publicly performed at live music
also Jeffery Brabec & Todd Brabec, Music, Money,
venues, on music services (e.g., digital
and Success: The Insider’s Guide to Making Money
music providers), and by other general
in the Music Business 339 (7th ed. 2011) (noting
that the census survey was formerly of the ‘‘top
licensees (including bars, restaurants,
200’’ tours and ‘‘eleven major venues’’).
stores, hotels, and similar venues);
47 Brabec at 394 (referencing ASCAP’s OnStage
5. Whether the manner in which the
program); see also BMI, Get Paid for Live
PROs gather information regarding
Performances with BMI Live, https://www.bmi.com/
public performances adversely impacts
special/bmi_live (last visited Jan. 22, 2025).
48 See, e.g., ASCAP, ASCAP’s Survey and
lesser-known artists and smaller
Distribution System: Rules & Policies (Oct. 2022),
publishers;
https://www.ascap.com/∼/media/files/pdf/
6. What information PROs currently
members/governing-documents/ascap-survey-provide to the public, including with
distribution-rules--10322.pdf; BMI, Royalty
respect to:
Information, https://www.bmi.com/
creators#royaltyinformation (providing higher-level
(a) repertoire information and
royalty calculation information) (last visited Jan. 22, metadata (e.g., song titles, songwriter
2025).
and publisher information, ownership
49 Letter from Reps. Jordan, Issa, and Fitzgerald to
shares, and unique identifiers); and
Shira Perlmutter, Register of Copyrights, U.S.
(b) royalty distribution practices and
Copyright Office at 1–2 (Sept. 11, 2024)
(‘‘Congressional Request’’), https://
policies;
www.copyright.gov/policy/pro-issues/letter-to-usco7. Whether any gaps or discrepancies
pro-issues.pdf.
occur
in royalty distributions, including
50
ddrumheller on DSK120RN23PROD with NOTICES1
smaller venues, some PROs allow
performers to self-report performance
data, which is used by the PROs to
calculate royalty distributions.47
PROs have created royalty calculation
and distribution policies to account for
all the elements they consider when
paying their members.48 While some
may publish aspects of these policies,
information regarding any individual
PRO’s financial operations, including
license and royalty distribution terms,
may not be publicly available for
competitive reasons.
ASCAP, Why ASCAP Licenses Bars,
Restaurants & Music Venues, https://
www.ascap.com/help/ascap-licensing/why-ascaplicenses-bars-restaurants-music-venues (last visited
Jan. 22, 2025).
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51 Congressional
52 Id.
Request at 1–2.
at 2.
53 Id.
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9257
circumstances where it is likely for
performance data to be unavailable or
incomplete and where PROs must rely
on proxy or survey data for royalty
distributions;
8. What technological and business
practices exist or could be developed to
improve the current systems for usage
tracking and royalty distribution;
9. The extent to which current PRO
royalty distribution practices are the
result of existing legal and regulatory
constraints; and
10. Additional recommendations for
Congress to address these issues.
Dated: February 5, 2025.
Suzanne V. Wilson,
General Counsel and Associate Register of
Copyrights.
[FR Doc. 2025–02418 Filed 2–7–25; 8:45 am]
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]]>Agencies
- Library of Congress
- U.S. Copyright Office
[Federal Register Volume 90, Number 26 (Monday, February 10, 2025)]
[Notices]
[Pages 9253-9257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-02418]
=======================================================================
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LIBRARY OF CONGRESS
U.S. Copyright Office
[Docket No. 2025-1]
Issues Related to Performing Rights Organizations
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
-----------------------------------------------------------------------
SUMMARY: The U.S. Copyright Office is collecting information regarding
issues related to performance rights organizations (``PROs'') and the
Copyright Act's public performance right for musical works. It is
initiating this inquiry at Congress's request to gather information on
questions related to the increase in the number of PROs and the
licensing revenue distribution practices of PROs.
DATES: Written comments must be received no later than 11:59 p.m.
[[Page 9254]]
Eastern Time on April 11, 2025. Written reply comments must be received
no later than 11:59 p.m. Eastern Time on May 27, 2025.
ADDRESSES: For reasons of governmental efficiency, the Copyright Office
is using the regulations.gov system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through regulations.gov. Specific instructions
for submitting comments are available on the Copyright Office's website
at https://copyright.gov/policy/pro-issues/. If electronic comment
submission is not feasible due to lack of access to a computer or the
internet, please contact the Copyright Office using the contact
information below for special instructions.
FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at [email protected] or telephone at 202-
707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
a. Public Performance Right for Musical Works and the Formation of PROs
Musical work copyright owners (e.g., songwriters or music
publishers) have enjoyed the exclusive right to perform their works
publicly since 1897.\1\ The variety of ways those works are performed,
however, has created practical challenges associated with the licensing
of the right. As one court summarized the issue:
---------------------------------------------------------------------------
\1\ Act of Jan. 6, 1897, ch. 4, 29 Stat. 481; see also 17 U.S.C.
106(4).
The users of music, such as theaters, dance halls and bars, were
so numerous and widespread, and each performance so fleeting an
occurrence, that no individual copyright owner could negotiate
licenses with users of his music, or detect unauthorized uses. On
the other side of the coin, those who wished to perform compositions
without infringing the copyright were, as a practical matter, unable
to obtain licenses from the owners of the works they wished to
perform.\2\
---------------------------------------------------------------------------
\2\ Columbia Broad. Sys., Inc. v. Am. Soc'y of Composers,
Authors and Publishers (``ASCAP''), 400 F. Supp. 737, 741 (S.D.N.Y.
1975), rev'd sub nom. Columbia Broad. Sys., Inc. v. ASCAP, 562 F.2d
130 (2d Cir. 1977), rev'd sub nom. Broad. Music, Inc. (``BMI'') v.
Columbia Broad. Sys., Inc., 441 U.S. 1 (1979); see also Columbia
Broad. Sys., Inc., 441 U.S. at 5 (describing how ``as a practical
matter it was impossible for the many individual copyright owners to
negotiate with and license [the public performance right to] users
and to detect unauthorized uses'' of musical works).
Performing rights organizations (``PROs'') were established to
address these challenges. Broadly, a PRO contracts with songwriters and
publishers for the authority to license the public performance rights
in their musical works, and then provides collective licenses of those
rights to users, allowing them to publicly perform the works in the
PRO's repertoire.\3\ Such licenses are significantly more efficient for
businesses, songwriters, and publishers when compared to song-by-song
licensing and enforcement.\4\
---------------------------------------------------------------------------
\3\ See Donald S. Passman, All You Need to Know About the Music
Business 230-31 (11th ed. 2023) (``Passman''); see also Makan
Delrahim, Ass't Att'y Gen., Antitrust Div., U.S. Dep't of Just.,
Statement of the Dep't of Just. on the Closing of the Antitrust
Div.'s Rev. of the ASCAP and BMI Consent Decrees 1 (Jan. 15, 2021)
(``Antitrust 2021 Closing Statement''), https://www.justice.gov/atr/page/file/1355391/dl.
\4\ See U.S. Copyright Office, Copyright and the Music
Marketplace 112 (2015) (``Music Marketplace Report''), https://www.copyright.gov/policy/musiclicensingstudy/copyright-and-the-music-marketplace.pdf.
---------------------------------------------------------------------------
b. Evolution of the U.S. PRO Market and Their Competition for Members
After a long period of stability, the number of PROs in the United
States has increased in recent years. The first U.S. PRO was ASCAP,
established in 1914, followed by SESAC in 1931 and BMI in 1939.\5\ More
recently, three new PROs have been formed: Global Music Rights (or
``GMR'') in 2013, PRO Music Rights in 2018, and AllTrack in 2019.\6\
---------------------------------------------------------------------------
\5\ Since 1941, ASCAP and BMI have been subject to separate
``consent decrees'' that restrict their licensing practices and
related operations. See id. at 34-42 (discussing consent decrees).
The Office notes that the Department of Justice's Antitrust Division
evaluates and oversees these consent decrees, and antitrust issues
are outside the scope of this Notice of Inquiry.
\6\ See Bruce Pollock, A Friend in the Music Business: The ASCAP
Story 14 (2014) (``Pollock''); BMI, BMI's Timeline Through History,
https://www.bmi.com/about/history (last visited Jan. 22, 2025); GMR,
About Us, https://globalmusicrights.com/about (last visited Jan. 22,
2025); SESAC, About Us, https://www.sesac.com/about/ (noting that
Paul Heinecke founded SESAC in February 1931) (last visited Jan. 22,
2025); Marc Schneider, GMR, About Us, https://globalmusicrights.com/about (last visited Jan. 22, 2025); InsideRadio, Upstart Music
Licensing Company Pro Music Rights Goes Public (July 22, 2022),
https://www.insideradio.com/free/upstart-music-licensing-company-pro-music-rights-goes-public/article_764bb32e-0987-11ed-9d35-ebdda2accc56.html; see also Pollock at 40 (identifying SESAC's
founding as 1930); Jason Lipshutz, SESAC at 80, The Hollywood
Reporter (Apr. 13, 2010), https://www.hollywoodreporter.com/business/business-news/sesac-80-22598/ (noting that ``SESAC was
founded in 1930 as a means of securing American royalties for
European publishers,'' but that ``SESAC quickly expanded to include
American music and began signing songwriters in 1970''). This is not
necessarily an exhaustive list, including because other PROs have
ceased operations. See, e.g., Pollock at 7 (noting that the French
PRO, SACEM, opened a U.S. branch in 1911, but ``failed to generate a
spark of interest''); Robert Israel Goodman, Comment, Music
Copyright Associations and the Antitrust Laws, 25 Ind. L.J. 168, 170
(1950) (referencing former PROs, such as the Society of Jewish
Composers and Israel Composers, Authors, and Publishers, Inc.).
---------------------------------------------------------------------------
These organizations compete with each other for songwriter and
publisher members through the license terms and programs they offer.\7\
As the Office has previously recognized, ``[s]ongwriters and publishers
have highlighted the importance of the existence of multiple PROs in
the music marketplace, indicating that they carefully choose the PRO
with which they affiliate based on their perception of which
organization will bring them the most benefit.'' \8\ PROs offer
different royalty rates to their members based on several factors,
including: the number of licensees paying royalties; the rates charged
to those licensees; \9\ the administrative fee charged for the PRO's
services; the PRO's for-profit or not-for-profit status; \10\ and the
methodologies used for
[[Page 9255]]
royalty calculations, which may provide higher payments based on the
relative commercial value of a musical work.\11\
---------------------------------------------------------------------------
\7\ Nonmonetary ways by which PROs may compete include their
educational, creative, and promotional offerings, such as showcases,
performance opportunities at festivals and conferences, or panels or
``songwriting awards, professional workshops, hands-on tutorials,
and networking events.'' Pollock at 2; BMI, BMI Member FAQs, https://www.bmi.com/faq/category/about (last visited Jan. 22, 2025)
(discussed under header ``What extra services does BMI offer to
members?''); see also Susan P. Butler, Collective Rights Management
Practices Around the World 20-21 (Apr. 2020), https://www.copyright.gov/policy/unclaimed-royalties/cmo-full-report.pdf
(``Some CMOs [collective rights management organizations, a term
which includes PROs] perform certain educational activities as ways
to compete with other CMOs for members or to provide a better
service to their own members. Some CMOs produce creative conferences
or host songwriter `camps' to share information or promote creative
collaborations.'').
\8\ Letter from U.S. Copyright Office to the Honorable Doug
Collins, Vice-Chairman, Subcommittee on Courts, Intellectual
Property and the internet, United States House of Representatives 26
(Jan. 29, 2016) (``Fractional Licensing Letter''), https://copyright.gov/policy/pro-licensing.pdf.
\9\ See Passman at 230, 235-36 (discussing PROs bargaining power
with licensees); William Livingston, General Manager, Gemeny Winery
and Vineyards LLC, Statement in Response to the Dep't of Just.'s
Request for Public Comments Concerning the ASCAP and BMI Consent
Decrees 1 (June 21, 2019), https://media.justice.gov/vod/atr/ascapbmi2019/pc-300.pdf (noting that ``[a]ll three companies `ASCAP,
BMI and SESAC' give us different rates to pay . . . .''); Ray
Waddell, The $300 Million Comeback: Irving Azoff Teams With MSG's
James Dolan to Create Intriguing Music Company, Billboard (Sept. 6,
2013), https://www.billboard.com/music/music-news/the-300-million-comeback-irving-azoff-teams-with-msgs-james-dolan-to-5687155/
(reflecting that SESAC is able to charge higher rates than ASCAP and
BMI).
\10\ While both ASCAP and BMI were not-for-profit organizations
for many decades, ASCAP is now the only PRO operating on a not-for-
profit basis. ASCAP, ASCAP Annual Report 2023 2 (2024), https://
www.ascap.com/~/media/site-pages/annual-report/2023/2023-ascap-
annual-report.pdf; see also Mike O'Neill, Quarterly Distribution
Update, BMI (Feb. 2023), https://www.bmi.com/distribution/letter/587887 (reflecting BMI's first distribution as a for-profit
business).
\11\ See Passman at 234-35 (noting that PROs ``change their
distribution rules on a regular basis'' and certain performance
bonuses ``also affect the results'' of those distributions); see
also, e.g., ASCAP, ASCAP's Survey and Distribution System: Rules &
Policies (Oct. 2022), https://www.ascap.com/~/media/files/pdf/
members/governing-documents/ascap-survey--distribution-rules--
10322.pdf; BMI, How We Pay Royalties: Live Concert Royalties,
https://www.bmi.com/creators/royalty/live_concert_royalties (last
visited Jan. 22, 2025).
---------------------------------------------------------------------------
c. PROs' Licensing Practices
PROs provide licenses for a wide variety of performances, including
``terrestrial, satellite, and internet radio, on-demand music streaming
services, website and television uses, . . . bars, restaurants, and
other commercial establishments, and live performances,'' \12\ as well
as uses by more niche businesses, such as roller rinks \13\ and laser
shows.\14\ They generally offer different license rates depending on
the type of business or use being licensed. ``For example, rates for
restaurants, nightclubs, bars and similar establishments depend on
whether the music is live or recorded, [is] audio only or audio visual,
the number of nights per week music is offered, whether admission is
charged and several other factors.'' \15\
---------------------------------------------------------------------------
\12\ Music Marketplace Report at 150.
\13\ ASCAP, ASCAP Music License Agreements and Reporting Forms,
https://www.ascap.com/music-users/licensefinder (listing twenty-six
separate license agreements) (last visited Jan. 22, 2025).
\14\ BMI, Music License Agreements and Reporting Forms, https://www.bmi.com/licensing/forms (listing fifty separate license
agreements) (last visited Jan. 22, 2025).
\15\ BMI, Music Licensing FAQs, https://www.bmi.com/licensing/faqs (click on ``Q: How much is a BMI music license and how is that
fee determined?'') (last visited Jan. 22, 2025).
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A standard practice for PROs is to offer licenses on a non-
exclusive basis, which means that businesses have the option of
obtaining performance licenses directly from publisher or songwriter
copyright owners, although it appears that instances of such direct
licensing has been infrequent.\16\ Most licensees that contract with
PROs obtain a blanket license \17\ to all works, or shares of works, in
the PRO's repertoire.\18\ The royalty fee charged is ``ordinarily a
percentage of . . . [the licensee's] revenues or a flat dollar
amount.'' \19\
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\16\ See BMI v. Pandora Media, Inc., 140 F. Supp. 3d 267, 275
(S.D.N.Y. 2015).
\17\ Music Marketplace Report at 33. PROs may offer other
license types, including per-program or per-segment licenses. Id.
\18\ A PRO's ``repertoire'' or ``repertory'' is sometimes called
its ``catalog.'' See GMR, Catalog Homepage, https://globalmusicrights.com/Catalog (last visited Jan. 22, 2025).
\19\ Columbia Broad. Sys., Inc., 441 U.S. at 5; United States v.
ASCAP, 627 F.3d 64, 68 (2d Cir. 2010) (``A blanket license is a
license that gives the licensee the right to perform all of the
works in the repertory for a single stated fee that does not vary
depending on how much music from the repertory the licensee actually
uses.'').
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As previously described by the Office, ``the practice of licensing
only partial interests in co-owned works'' is called ``fractional''
licensing and stands in contrast to ``100-percent'' licensing, which
entails ``granting full rights to use a co-owned work based upon a
partial interest in the work.'' \20\ Because musical works are
frequently created by multiple authors (i.e., songwriters, including
composers and lyricists),\21\ co-ownership issues can play an important
role when licensing musical works. Depending on the circumstances of
their creation, musical works with multiple authors may be considered
joint works.\22\ While the default rule is that joint authors own equal
and undivided interests in a copyright-protected work,\23\ musical work
joint authors often agree to alter that rule, including to instead
divide the ownership shares unequally and to permit separate licensing
of those shares.\24\
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\20\ Fractional Licensing Letter at 1-2.
\21\ As the Office has previously reported, in addition to
multiple songwriters who may work on a single work, a ``song may
incorporate samples of, or remix, preexisting works'' owned by
additional copyright owners. Id. at 8-9.
\22\ See id. at 4-8. In some circumstances, the work may be
considered a derivative work or compilation. Id.
\23\ 17 U.S.C. 201(a) (``The authors of a joint work are
coowners of copyright in the work.''); see also Fractional Licensing
Letter at 6-7 (discussing this topic further).
\24\ Fractional Licensing Letter at 9. When signing a standard
publishing contract, a songwriter will ``assign[ ] the entirety of
his or her copyright interest in a composition or catalog of
compositions to a publisher in exchange for the publisher's
administrative services and a share of revenues,'' but the
songwriter will retain the ability to collect his or her share of
royalties directly from their chosen PRO. Id. at 11.
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Fractional licensing is often cited by licensees as a cause of
administrative frustration and increased costs.\25\ For example, if a
musical work has multiple songwriters and publishers who have
authorized different PROs to license their separate fractional
interests, then any PRO's ability to offer a license is limited to the
fractional interests that the PRO has obtained.\26\ In that case, the
entity that intends to publicly perform a particular musical work must
confirm that it has obtained a license for all of the fractional
interests in the work, which may require licenses from multiple
PROs.\27\ Otherwise, that user ``may face infringement liability'' for
publicly performing the work.\28\
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\25\ See, e.g., Brief of Television Music License Committee as
Amici Curiae Supporting Appellant at 28, United States v. BMI, 720
F. App'x 14 (2d Cir. 2017) (No. 16-3830) (suggesting that fractional
licensing would be ``costly'' and ``time consuming'' for local
broadcasters); Brief for Consumer Action and Public Knowledge as
Amici Curiae Supporting Appellant at 3, United States v. BMI, 720 F.
App'x 14 (2d Cir. 2017) (No. 16-3830) (stating that fractional
licensing makes it ``harder and more expensive for music services to
license songs'').
\26\ See Fractional Licensing Letter at 10-15.
\27\ United States v. BMI, 207 F. Supp. 3d 374, 375 (S.D.N.Y.
2016), aff'd, 720 F. App'x 14 (2d Cir. 2017) (summary order) (``a
music user, before performing any multi-owner work in a PRO's
repertory, would need a license to [all] the fractional interests
held by each of the work's co-owners'').
\28\ Fractional Licensing Letter at 9; see also Columbia Broad.
Sys., Inc., 441 U.S. at 18 (``Those who would use copyrighted music
in public performances must secure consent from the copyright owner
or be liable at least for the statutory damages for each
infringement and, if the conduct is willful and for the purpose of
financial gain, to criminal penalties.'').
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While the practice of fractional licensing has caused frustrations
for some licensees, it has encouraged competition among the different
PROs for songwriters and publishers.\29\ The Office previously noted
that if PROs were forced to offer 100-percent licenses, doing so
``would seemingly vitiate important principles of copyright law,
interfere with creative collaborations among songwriters, negate
private contracts, . . . impermissibly expand the reach of the consent
decrees,'' and ``could also severely undermine the efficacy of [PROs]''
and their ability to ``grant blanket licenses.'' \30\
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\29\ Fractional Licensing Letter 19, 23-25.
\30\ Id. at 3, 13.
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Information regarding what works are covered by a PRO's blanket
license is not always publicly available. The largest U.S. PROs do
publicly disclose the works in their respective repertoires.\31\ For
example, in 2020, ASCAP and BMI debuted ``SONGVIEW,'' an online ``joint
song data platform,'' that ``reconcile[s] songwriter and publisher
information'' between those two PROs.\32\ If a musical
[[Page 9256]]
work's rights are not fully licensed by ASCAP and BMI, SONGVIEW will
indicate what percentage of rights are outside the control of these two
PROs and may also indicate which other PROs control the remaining
rights.\33\ Two other PROs, SESAC and GMR, provide web pages dedicated
to their respective repertoires along with the option to acquire their
repertoire information in bulk.\34\
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\31\ See ASCAP, ASCAP Repertory Search, https://www.ascap.com/repertory (last visited Jan. 22, 2025); BMI, SONGVIEW, https://repertoire.bmi.com/ (last visited Jan. 22, 2025); SESAC, Search
Repertory, https://www.sesac.com/repertory/ (last visited Jan. 22,
2025) (including a link to download SESAC's entire repertory); GMR,
Catalog Homepage, https://globalmusicrights.com/Catalog (last
visited Jan. 22, 2025); see also GMR, Request Full Catalog, https://globalmusicrights.com/CatalogRequest (last visited Jan. 22, 2025).
\32\ Ed Christman, Who Owns That Song? ASCAP & BMI's New Joint
Data Platform Will Tell You, Billboard (Dec. 21, 2020), https://www.billboard.com/pro/ascap-bmi-joint-database-songview/.
\33\ See Inside Radio, ASCAP, BMI Launch Music Data Platform
With Copyright Info For Millions of Songs (Dec. 21, 2020), https://www.insideradio.com/free/ascap-bmi-launch-music-data-platform-with-copyright-info-for-millions-of-songs/article_b3e0b200-43ab-11eb-ba27-13dee78eb249.html (``[I]f a song is reconciled in Songview
between ASCAP and BMI and there are shares from another PRO involved
in the work, such as SESAC or GMR, then the system will list those
shares as `Other' or will reflect that the ASCAP and BMI shares
don't add up to 100%. In addition, writer affiliations are displayed
and there is also an indication that there are non-ASCAP and BMI
publishers involved with that work.'').
\34\ SESAC, Search Repertory, https://www.sesac.com/repertory/
(last visited Jan. 22, 2025) (including a link to download SESAC's
entire repertory); GMR, Catalog Homepage, https://globalmusicrights.com/Catalog (last visited Jan. 22, 2025); GMR,
Request Full Catalog, https://globalmusicrights.com/CatalogRequest
(last visited Jan. 22, 2025).
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Nevertheless, the information in these databases and websites may
include inaccuracies as a result of changes in the PRO's membership
\35\ and the fact that some data is provided by third parties,
including songwriters and publishers.\36\ The largest U.S. PROs
disclose this fact, disclaiming any guarantees or warranties.\37\ At
the same time, some PROs represent that they will not bring litigation
against those relying in good faith on their publicly available
repertoire data.\38\
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\35\ Songwriters can leave ASCAP and BMI every two years. ASCAP,
Compendium of ASCAP Rules and Regulations, and Policies Supplemental
to the Articles of Association sec. 1.11.1 (Aug. 14, 2023), https://
www.ascap.com/~/media/files/pdf/members/governing-documents/ascap-
compendium.pdf; BMI, Affiliation Agreement Info, https://www.bmi.com/creators/agreement (last visited Jan. 22, 2025).
\36\ See, e.g., ASCAP, ASCAP Repertory Search--Terms of Use
Agreement, https://www.ascap.com/help/legal/ace-terms-of-use (noting
that ``information contained in ASCAP Repertory Search has been
supplied to ASCAP, and is aggregated from, a variety of third party
sources'') (last visited Jan. 22, 2025).
\37\ Id. (noting that information in ASCAP's database ``changes
on a continual basis, and as with any information database, there
may be inaccuracies or delays in updating the information'' and
including a disclaimer related to use of its database); BMI,
Disclaimer, https://repertoire.bmi.com/Main/DisclaimerOnly (``BMI
has high confidence in the accuracy of the data we provide, which is
obtained from rights holders who, as royalty recipients, have every
incentive to provide reliable data,'' though ``BMI cannot give a
blanket guarantee regarding the accuracy of the data . . . .'')
(last visited Jan. 22, 2025); BMI, Terms and Conditions of Use,
https://www.bmi.com/legal/entry/terms_and_conditions_of_use (noting
that ``[t]he information contained in the BMI Searchable Song Title
Databases have been provided to BMI from a variety of sources, and
BMI makes no warranties or representations whatsoever with respect
to the accuracy or completeness of the information in the BMI
Searchable Song Title Databases other than to determine what musical
compositions are licensed by BMI through the last update'' and ``BMI
does not warrant or represent that any BMI content that you may
access at or through a BMI site or service is current, accurate or
complete'') (last visited Jan. 22, 2025); SESAC, Search Repertory,
https://www.sesac.com/repertory/ (``As search results will contain
information provided to SESAC by the songwriters and publishers that
SESAC represents, SESAC makes no representations and/or warranties
with respect to the accuracy or completeness of the information
found within the search results, though SESAC has no reason to
believe that the information found within the search results is
inaccurate or incomplete.'' (text displayed in a pop-up window))
(last visited Jan. 22, 2025); GMR, Terms of Use, https://globalmusicrights.com/TermsOfUse (``The information contained in the
[GMR] Database changes on a continual basis, and as with any
information database, there may be inaccuracies or delays in
updating the information. Although [GMR] uses reasonable efforts to
update the [GMR] Database and improve the accuracy of the
information contained therein, [GMR] makes no guarantees, warranties
or representations of any kind with regard to and cannot ensure the
accuracy, completeness, timeliness, quality or reliability of any
information made available on and through the [GMR] Database.'')
(last visited Jan. 22, 2025).
\38\ BMI, Disclaimer, https://repertoire.bmi.com/Main/DisclaimerOnly (``Businesses that take out a BMI license can be
assured that BMI will not bring an infringement action against a
licensee that relies on the information contained in the data
platform. . . . Additionally, BMI will not sue an individual or
business for infringement for the performance of music in which BMI
has an interest if, when that music is performed, it was not listed
in the data platform.'') (last visited Jan. 22, 2025); GMR, Request
Full Catalog, https://globalmusicrights.com/CatalogRequest (``Global
Music Rights will not sue anyone for copyright infringement for
performances of these compositions unless they appear in this
catalog at the time of performance.'') (last visited Jan. 22, 2025);
SESAC, Search Repertory, https://www.sesac.com/repertory/ (``SESAC
uses reasonable efforts to keep the information contained in its
repertory database current and will grant Users of this Repertory
Search a forty-five (45) day grace period beginning upon the date
that a musical work is first posted to SESAC's repertory database to
obtain from SESAC a license covering the use of that musical work,
during which forty-five (45) day period SESAC will make no claims of
copyright infringement against the User; provided, however, that the
User has acted in good faith and was unaware that the musical work
is contained within SESAC's repertory.'') (text displayed in a pop-
up window)) (last visited Jan. 22, 2025).
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d. PROs' Usage Tracking and Royalty Distribution Practices
To accurately distribute royalties, PROs must track the musical
works performed by their licensees. This may be based on licensee- or
artist-based reporting (including by providing playlists, program
guides, cue sheets, or setlists).\39\ It also may involve the PRO's
monitoring of performances on certain mediums, such as on broadcast or
cable television or terrestrial or satellite radio.\40\
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\39\ See, e.g., Bob Kohn, Kohn on Music Licensing 1241-42 (5th
ed. 2019); Passman at 232-34; ASCAP, ASCAP Payment System:
Identifying Performances, https://www.ascap.com/help/royalties-and-payment/payment/identifying (last visited Jan. 22, 2025).
\40\ See Passman at 233-34.
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In certain circumstances, accurate usage data may be unavailable or
economically inefficient to obtain. PROs may then rely on proxy data to
estimate usage.\41\ This proxy data may come from a census (where a
``complete count[ ] of performances in a medium'' has been made) or
sample surveys (where the PRO ``tak[es] a representative cross-section
of the performances on [a] medium'').\42\
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\41\ Id. at 233; BMI, How We Pay Royalties, https://www.bmi.com/creators/royalty/general_information (``[I]n cases where performance
data is not available or is incomplete for any of the sources from
which BMI collects fees, BMI may distribute those fees against
performances from a source or sources where sufficient data is
available.) (last visited Jan. 22, 2025).
\42\ ASCAP, Royalties and Payment: Frequently Asked Questions,
https://www.ascap.com/help/royalties-and-payment (last visited Jan.
22, 2025).
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In addition to the number of times a musical work has been
performed, other factors affect the royalties that a PRO distributes to
its members. As noted above, a PRO may charge different rates based on
the category of use (e.g., terrestrial and satellite radio, television,
cable, audiovisual streaming services, audio streaming services,
concert venues, etc.).\43\ Additional distinctions may be made within
any of these categories of uses, e.g., the royalty for musical works
performed on a television program may depend on whether the use was on
local or network television or used as a featured performance, theme
song, or background music (or underscore).\44\ In some circumstances,
PROs may also distribute royalty bonuses for hit songs or popular
standards.\45\
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\43\ See generally, ASCAP, ASCAP's Survey and Distribution
System: Rules & Policies (Oct. 2022), https://www.ascap.com/~/media/
files/pdf/members/governing-documents/ascap-survey--distribution-
rules--10322.pdf.
\44\ Jeffery Brabec & Todd Brabec, Music, Money, and Success:
The Insider's Guide to Making Money in the Music Business 388-91,
397-400 (8th ed. 2018) (``Brabec'') (providing an overview of
television royalty payment formulas for ASCAP and BMI).
\45\ Id. at 357; see also Passman at 234 (reflecting that PROs
may pay bonuses for popular songs).
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With respect to live performances at larger venues, some PROs have
historically only paid royalties for those musical works performed at
the top-grossing tours and festivals.\46\ For
[[Page 9257]]
smaller venues, some PROs allow performers to self-report performance
data, which is used by the PROs to calculate royalty distributions.\47\
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\46\ Brabec at 394 (noting that ``ASCAP conducts a census survey
(100% pickup) of all songs performed in the 300 largest concert
tours and festivals in the United States, as well as all songs at a
dozen or so selected venues . . . .''); Passman at 234 (``The
societies pay based on domestic concert performances, but it's only
for the top three hundred grossing tours and festivals . . . .'');
see also Jeffery Brabec & Todd Brabec, Music, Money, and Success:
The Insider's Guide to Making Money in the Music Business 339 (7th
ed. 2011) (noting that the census survey was formerly of the ``top
200'' tours and ``eleven major venues'').
\47\ Brabec at 394 (referencing ASCAP's OnStage program); see
also BMI, Get Paid for Live Performances with BMI Live, https://www.bmi.com/special/bmi_live (last visited Jan. 22, 2025).
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PROs have created royalty calculation and distribution policies to
account for all the elements they consider when paying their
members.\48\ While some may publish aspects of these policies,
information regarding any individual PRO's financial operations,
including license and royalty distribution terms, may not be publicly
available for competitive reasons.
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\48\ See, e.g., ASCAP, ASCAP's Survey and Distribution System:
Rules & Policies (Oct. 2022), https://www.ascap.com/~/media/files/
pdf/members/governing-documents/ascap-survey--distribution-rules--
10322.pdf; BMI, Royalty Information, https://www.bmi.com/creators#royaltyinformation (providing higher-level royalty
calculation information) (last visited Jan. 22, 2025).
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II. Congressional Request and Subjects of Inquiry
In September 2024, the Copyright Office received a letter from
three members of the House Judiciary Committee relaying concerns over
(1) the increase of PROs and (2) difficulties regarding how to ``assess
how efficiently PROs are distributing general licensing revenue, based
on publicly available data.'' \49\ The term ```[g]eneral licensee' is
an umbrella term referring to the hundreds of thousands of bars,
restaurants, hotels, ice and roller skating rinks, theme parks and
other `brick and mortar' businesses . . . that are not TV, radio or
audio and audio-visual streaming platforms.'' \50\ The letter asked the
Office to gather information regarding these issues. With this notice,
the Office is soliciting input to aid Congress's consideration of these
issues and invites written comments on the subjects of inquiry below.
---------------------------------------------------------------------------
\49\ Letter from Reps. Jordan, Issa, and Fitzgerald to Shira
Perlmutter, Register of Copyrights, U.S. Copyright Office at 1-2
(Sept. 11, 2024) (``Congressional Request''), https://www.copyright.gov/policy/pro-issues/letter-to-usco-pro-issues.pdf.
\50\ ASCAP, Why ASCAP Licenses Bars, Restaurants & Music Venues,
https://www.ascap.com/help/ascap-licensing/why-ascap-licenses-bars-restaurants-music-venues (last visited Jan. 22, 2025).
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A. The Increase in PROs
The Congressional Request states that bars, restaurants, stores,
hotels, and music venues engaged in the public performance of musical
works ``have reported receiving demands for royalties from new entities
claiming to represent songwriters, and threatening litigation if the
demands are not met.'' \51\ It adds that, ``[c]onsidering that the
possibility of substantial statutory copyright damages poses an
existential risk for most bars, restaurants, and other small
businesses, many feel compelled to pay these entities on top of what
they already pay for blanket licenses from the traditional PROs.'' \52\
---------------------------------------------------------------------------
\51\ Congressional Request at 1-2.
\52\ Id. at 2.
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The Office is requesting public comment on the following topics:
1. To what extent, if any, have there been increased financial and
administrative costs imposed on licensees associated with paying
royalties to additional PROs;
2. Factors that may be contributing to the formation of new PROs;
and
3. Recommendations on how to improve clarity and certainty for
entities seeking to obtain licenses from PROs to publicly perform
musical works.
B. General Licensing Revenue Distribution Methods
With respect to concerns regarding revenue distribution, the
Congressional Request states that ``it is difficult to assess how
efficiently PROs are distributing general licensing revenue based on
publicly available data,'' including ``how accurately lesser known and
independent artists as well as smaller publishers are being compensated
compared to widely popular artists and major publishers.'' \53\
---------------------------------------------------------------------------
\53\ Id.
---------------------------------------------------------------------------
The Office is requesting public comment on the following topics:
4. How PROs currently gather information concerning musical works
publicly performed at live music venues, on music services (e.g.,
digital music providers), and by other general licensees (including
bars, restaurants, stores, hotels, and similar venues);
5. Whether the manner in which the PROs gather information
regarding public performances adversely impacts lesser-known artists
and smaller publishers;
6. What information PROs currently provide to the public, including
with respect to:
(a) repertoire information and metadata (e.g., song titles,
songwriter and publisher information, ownership shares, and unique
identifiers); and
(b) royalty distribution practices and policies;
7. Whether any gaps or discrepancies occur in royalty
distributions, including circumstances where it is likely for
performance data to be unavailable or incomplete and where PROs must
rely on proxy or survey data for royalty distributions;
8. What technological and business practices exist or could be
developed to improve the current systems for usage tracking and royalty
distribution;
9. The extent to which current PRO royalty distribution practices
are the result of existing legal and regulatory constraints; and
10. Additional recommendations for Congress to address these
issues.
Dated: February 5, 2025.
Suzanne V. Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2025-02418 Filed 2-7-25; 8:45 am]
BILLING CODE 1410-30-P
