Copyright laws and pop music radio

Factual Questions
1

My roommate and I were having an intense debate last night about filesharing, and specifically Napster (please don’t take up this debate here). I told him I was of the opinion that using Napster to gain access to one’s copyrighted intellectual property without their consent is stealing. He claimed it wasn’t and he used the example of pop radio as a strong basis for his argument.

He claims: that once an album is published any radio station is free to play it at will. The reason why it seems a particular single from a newly released album appears coincidentally on all the many pop stations at the same time, while all the other selections from that album are not heard until the first has exhausted its popularity, is because the radio stations work in conjunction with the record companies who simply advise the radio stations of which selection they are marketing at the moment and thus feel will be most beneficial to the success of their station. Radio stations take this advice and play what is suggested to them. Therefore, there is no difference between hearing and recording a song from the radio, and downloading it from a filesharing service.

I claim: that I strongly believe that the owner of the music (record company, artist, whoever) decides what selection the radio station can legally play, regardless of whether the entire album has been released to the public. Thus, the radio is simply a means of advertising the product (the album) whereby the owner provides a “free” sample (which I believe the radio station actually pays for) for the public to hear.

So my question is what are the laws concerning what a radio station can and can’t play? Can they play anything that has been published or only what the owner allows them?

As a sort of followup: what about club owners? businesses (sp?), bars, shops, places in general that may have music playing somewhere in the background where the public is likely to be? (It is my belief that it is illegal in these circumstances as well, but it’s just not a significant enough issue to artists for anyone to make a stink about it. If it ain’t broke don’t fix it.)

2

You’re both wrong, but your rommate is more wrong than you.

Radio stations, and any business which plays music for the public, pay a licensing fee to the music publisher (in the U.S. they’re generally represented by ASCAP or BMI) for the rights to play the music. The radio station keeps a log of the music they play and turns it over to the publishers, who divvy up the royalties accordingly.

Side note: back when I worked in radio, in the pre-computer days, we had to keep a log BY HAND of every song we played, and that included songs that we put into commercials, and the Star Spangled Banner we played at sign-on. Failure to keep adequate records was (and still is) grounds for a lawsuit.

However, the station pays a “blanket license” which allows it to play any song represented by the licensing agency. So once the artist releases the song, they can’t control who plays it, as long as the player is a payer.

Your roommate is right that the record companies may give the album to the radio station (they often do, but not always) and the radio station often plays the hit single (because it’s the one the record company is promoting, so it makes sense that they scratch each other’s backs). But, no, it’s not “free.” The artist has a right to make money from his/her work, and there’s a mechanism in place to see that it happens.

Cecil once did a column which explains the mechanics of this very well. You may want to search for it.

3

Your roommate is incorrect. Radio stations are not free to play records without permission from the copyright holders. At a minimum, all radio stations buy blanket broadcast rights from the two largest music copyright clearance organizations, ASCAP and BMI. The radio station pays fees to those organizations, who then distribute the fees to the artists based on how often the songs are played.

There’s probably much more to it than that, but IANAIPL (I Am Not An Intellectual Property Lawyer.) However, I do dimly remember dealing with ASCAP and BMI from my college radio days.

(They are blanket licences, though, meaning that if you buy an ASCAP license you can play whatever ASCAP songs you wish.)

4

sorta. all radio stations, clubs, large stores, internet radio stations, cable networks, plays, pretty much EVERYTHING that uses copyrighted music pays licensing fees for the right to play the song. there are 3 licensing groups active in the US, ASCAP, SESAC, and BMI. radio stations get serviced with promo copies, and more often than not, these are singles only. record companies/marketing companies focus on one song at a time to make sure that the billboard spots and other ‘ranking’ systems only have one song from a particular artist to contend with, so that, let’s say, britney spears has one song that has 50,000 rotations, and not 2 songs with 25,000 apiece.

broadcast media don’t pay for the music that they play, they only pay for the right to play it. and they can play whatever songs they want, with the exception of indecent and obscene songs, if they’ve paid the licensing companies (ASCAP, SESAC, BMI).

5

Radio Stations don’t, necessarily, pay to play songs, but they DO pay to PROVE they played them.

Unless things have changed, here’s how it goes:

[list=1]
[li]Artist creates song for Record Company[/li][li]Record company has reps PUSH the songs to radio stations all throughout the country, offering trinkets, and tee-shirts, and crapola like that (Used to be drugs, which was payola… but that’s different).[/li][li]Radio Staion plays song, hopefully gets higher ratings, charges more for advertising, remembers the record company that helped them gets there, offers to play more of THEIR artists…[/li][/list=1]

Once a year or so (Perhaps more), a radio station must take VERY SPECIAL note of ALL songs they play for a week or so, so the RECORD COMPANIES can PAY the artist’s their royalties.

So, it’s not a PAY situation for the radio station, but a “scratch your back” kinda thing. When I worked in radio, the record companies really wanted you to play only the dingles from albums (CDs) when they were new, but couldn’t care less what song you play from their OLD album.

As far as clubs go, it only behooves the clubs to have the songs people wanna hear. The record reps don’t really have control, as there is no way to tell how well any one song/artist is being received in the club.

And, finally, the only reason record compaines don’t care that you record a song off the radio, but do care about napster (Morpheus for the enlightened), is a question of CLARITY. Radio waves=crappy sound, Digital copy = perfect sound.

Now slap your roomate in the head, as that is what roomates are for.

6

Radio stations pay a royalty of some fraction of a penny per hour of music played to ASCAP and BMI, which collect royalties for composers.

I believe they can play pretty much any cut they want from an album once it is released. Back in the day, FM stations used to play all kinds of obscure album cuts, and stayed away from the “singles”, which were the province of AM, pop radio.

Nowadays, the whole process is more commercialized and stations generally play only those songs the label is pushing. But, if they wanted to, they could play any tune from the album.

Listening to the radio is not stealing because money goes back into the pockets of the artists by way of ASCAP/BMI. An similar agreement is, I understand, in the works for “web” radio and the like.

There is no such agreement with respect to playing music in bars, malls, etc. I’m not sure of the precise legalities, but it makes sense–radio is directly profiting from playing this music and there’s at least a chance you could be taping songs off the radio. Your local pub is not profiting directly from your exposure to the music and, moreover, there’s no way for you to take it home from the bar. Napster allows you to actually download the music to your hard drive.

7

I’m posting this from work…which happens to be a radio station.
We pay annual fees to ASCAP and BMI for the rights to play the music.
Any business using the music for a commercial purpose need to pay the fees. Jukebox owners, Club owners, etc.
If your business has a “sold on hold” service on your telephone, that service pays the fees.

-----------As to what music the station plays…that’s a little more involved. Let me just tell you what we do.
If you are a “reporting station” (to Billboard, Radio and Records and/or Gavin) your station will become valuable to record promoters who want you to report their product on your playlist.
For their part the promoters will load you up with the latest stuff and you will have to put up with the latest sales pitches about why this and this and that are bound to be #1 and why you should be jumping on it right now.

These promoters can also supply you with lots of free stuff to give away. Ever heard of “Win it Before You Can Buy It” Weekends? Guess how much the radio station paid for those CD’s?
Zip.
If you do win one of those CD’s take a good look at it. It most likely will carry the disclaimer Not For Resale. Promotional Use Only somewhere on the label.

If you want your radio station to stay on a good relationship with your promoters (so you can pimp 'em for free products to give away) you will pay attention to what they want promoted. If they’re going to release X as a single from the latest album…you make sure you play X (if you think it’s any good). Since that’s the song the record company is promoting you can bet that’s the song that entertainer will sing when they make their guest appearances for the next 90 days…so you’re station is “playing the hits.” Got it?

8

a word on licenses: blanket types are the most common, for entities that play a LOT of music, like radio stations, mtv, clubs, etc. it’s good for a year. avg cost, to a small college radio station (my experience) about 400 bucks for ASCAP and BMI, about 60 bucks for SESAC. the price depends on how much of their music you play, how big the station is, if it’s commercial, etc. schools can buy licenses that cover all their radio station, whatever plays come through, and music used in their unions for concerts, and so on. [aside note–venues need to pay the license, not the artists, when they play in concert]

tv stations and other media can choose to ‘pay per play’, where they would pay the licensing company a set amount for each time they played the song (or a portion other than what would be deemed fair use). a station like CNN would probably utilize this.

and other licenses exist, for putting in on a physical media, for using it in commercials, movies, tv shows, etc.
it’s complicated, and interesting.

9

OK, so as I understand it, the record companies release music to these liscensing agencies which charge radio stations a single all-encompassing fee for access to their entire playlist.

Can Britney Spears release an album for sale to the public in CD stores, while only releasing a single song from that album to the liscensing agencies thus preventing a radio station from legally playing anything they want from the album?

I guess I’m still confused about what these agencies actually are. Are they independent of the record companies? Are they legal institutions which are there to protect record companies and therefore do not necessarily have to be involved, unwise as this may be?
Does a smalltime independent publisher need representation from these agencies to be played on the radio?

oh and Frumpy, thanks for sticking up for me, but our debate has hardly gotten intense enough where I would introduce words like “idiot” into the dialogue.

10

Sorry about the idiot thing… Just had too many roomates throughout the year and I would’ve sworn they all subscribed to the same newsletter…

11

Hang on, Moe. Let’s not make this too complicated.

The record companies promote entertainers. Part of the job is to convince as many radio stations as possible to feature those entertainers. That’s where the promoters come in. These guys (and girls) get paid to call you or your music director and “sell” you on playing the music they represent. These promoters could get paid directly by the record company or they could be independant.
The emphasis here is on the artist and the current song the artist happens to be singing.

NOW…ASCAP, BMI and SESAC are agencies that represent the songwriters.
The writer gets paid for the use of his/her product.

12

record labels give the product to radio stations and to the consumer (keep in mind i’m cutting out vendors and distribution links and whatnot). licensing agencys just collect money on behalf of the copyright holders. the licensing agencys collect the playlists to estimate how much of the money (precentage-wise) to give to the copyright holder. let’s say that that KBEA plays all beatles songs, even covers of beatles songs. KBEA sends it’s playlists to the licensing agencies when prompted. john lennon and paul mccartney wrote most of the songs the beatles recorded and had them licensed through ASCAP. (licensing agencies pay the copyright holder, remember, not the actual recording artist. if britney records “i am the walrus”, paul and john’s estate get the proceeds, not britney). ASCAP would see that 100% of the songs that KBEA played were written by Lennon/McCartney, and would give the licensing fees to Northern Songs LTD. If KBEA played a song written by someone other than the beatles, say a cover that they did, a small precentage would go to that songwriter.

that would be the record label’s decision. but since the radio station has paid it’s fees to ASCAP, BMI or SESAC, it can play whatever they damn well please that is licensed by those agencies (everything released in the US). a station could theorectically only pay ASCAP and BMI, but it’d have to refrain from playing anything licensed to SECAC, which might be 20% of the music released (it’s a minor player).

they are independant. each song publisher (song writers go through publishers…many writers publish their own songs) is affiliated with a licensing agency. Lennon/McCartney’s Northern Songs LTD (other writers also used Northern Songs LTD) is affilated with ASCAP. they are legal (as opposed to illegal) but not set up by the government or anything. they’re businesses. you don’t NEED to be affiliated, but just try to get money from the radio station for playing your song.
check out http://www.ascap.com/lp_music_licensing.html for a good run down.

13

The information here has been generally quite accurate. The bottom line is that radio station pay to play the music. That money goes to the artists.

Napster pays nothing. More importantly, they haven’t gotten permission to distribute the songs. They are making copies without permission of the copyright holder. That’s what’s illegal.

14

Another part of copyright law says if you write a song and copyright it, anyone can record it and release it as long as they pay you a royalty. So you cannot prevent anyone from recording songs you write even if you hate them - but they must pay the standard royalty rate.

In the case of Weird Al he normally gets permission because he changes the song so he is not recording the same song but a modified version of it.

As strange as it sounds, this law goes back to when player pianos were new. It was put into place so that people could not write music and then only sell it to certain companies to put on the piano sheets.

15

not to nitpick, but the money from radio station licenses only go to the writers of the song. the artists get money from cd sales (the writer of the songs do too), and concerts, and t-shirts.

16

Thanks all for this very comprehensive info :slight_smile: BUT, can I just ask one more (possibly very redundant) question? I know the answer is somewhere in this thread but I’m still not 100% clear.

The most important point I was trying to make to my roommate is that though an album may be released to the CD stores and available for the public to buy, the owner of the music (be it the artist, writer, record company, whomever) (i.e not the radio station) still ultimately has legal control over what tracks from that CD may be played on the radio.

It has been said in this thread that

AND

From this it would seem that I am wrong, but just to confirm:

Can a newly released CD, available in all CD stores for Joe Shmo to buy and own, contain tracks that a radio station is legally forbidden to play (excluding reasons for obscene stuff of course)? Or is it simply a matter of maintaining good customer relations that deters a radio station from playing the new Bitney Spears CD in its entirety?

My apologies for my thick-headed inability to grasp this, assuming it has already been answered.

17

Okay, I am not an intellectural property lawyer but here goes.

Let’s say a pop artist has recorded a CD with 15 songs written by 15 different authors (or “publishers”). One of those authors did not sign a blanket agreement with ASCAP/BMI/SECAP. Therefore the radio station has no mechanism to pay royalties back to the composer.

However, copyright law says that once the author has released the work for the first time, they can not deny permission for it to be performed by anyone else, as long as the someone else pays a royalty. In other words, once the author allowed the song to be performed by ANYONE (i.e., once Britney recorded it), it was released to everyone who is willing to pay the royalty – radio stations, other recording artists, marching bands, whatever.

It’s up to the author and the radio station (disco, background music service, marching band, etc.) to work out a method of paying and collecting royalties. If they can’t do it one-on-one, they can settle the issue in court.

And that’s what killed Napster. They were making it possible for copies of the work to be distributed without having any royalty agreements in place.

BUT, that doesn’t make it illegal to play the music. And there’s nothing to prevent a radio station from playing Britney’s new CD from start to finish, except, perhaps, the nausea tolerance of its listeners.

18

To nitpick even further, the licensing money goes to the writers and publishers of the songs. The writers may or may not be the recording artists, and the publishers may or may not be the writers or the artists.

Here is a link to a BMI Clearance Form (Adobe PDF document), which writers and publishers who are BMI members must fill out for every single song which is to be released to the public and for which they are likely to receive royalties.

BTW, it used to be a not-uncommon practice, in the heyday of AM rock and progressive FM radio, to play an entire album when it was first released. When “Sgt. Pepper” was first released in 1967, many radio stations played it in its entirety several times in a row. Nowadays, with the music and radio businesses being what they are, it would be almost unheard of.

19

The radio station can play any tracks they choose. All the songs on a CD are covered by ASCAP/BMI unless they are in the public domain. There are cases where a station decided to play a song that wasn’t recommended by the record company, and it turned out to be a big hit. For this reason, the artists make sure all the songs are covered.