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ASCAP, BMI, SOCAN, PRS, LOL, OMG, WTF. Welcome to the world of Performance Rights Organizations, or PRO’s. Why do we have them, what do they do, and why is it important for musicians to know all this?

Recall from our discussion of copyright that one of the exclusive rights of a copyright holder is the right to publicly perform her work. The performance of music has always played a large role in the public’s engagement with music. Before recording technology came along, public performance income for musicians was simple – get on stage, play, and get paid. Now however, songwriters and musicians can have their recordings publicly performed without having to physically be there. As a result, the licensing of public performances has become very important to musicians and serves as a major revenue stream for them.

The Public Performance Right

Before diving into the role of Performance Rights Organizations, let’s take a closer look at the public performance right itself. The United States defines a “public performance” of a copyrighted work this way:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Most other countries under the Berne Convention define public performance in roughly the same way. As you can see, the definition is very broad. Today, it encompasses everything from live concerts to radio, television, in-store music at bars and retail shops, on-hold music, muzak, internet streaming, and so on.

The Role of Performance Rights Organizations

It’s extremely rare, but it does happen that individual songwriters engage in direct negotiations with venues or organizations for public performance licenses. The majority of the time, however, it is a Performance Rights Organization that handles all the licensing. Why is this?

Imagine a world without Performance Rights Organizations. You, as a songwriter, would like to get your song played on the radio. With over 10,000 radio stations in the US, that’s a lot of potential performance licenses to negotiate and keep track of. Or, if you’re a radio station, think of all the licenses you have to procure – one from every songwriter of every song you might conceivably play, not to mention the piles of tiny royalty checks you’d have to send out.

Performance Rights Organizations take care of this problem by acting as a go-between for the songwriters and anybody who wishes to publicly perform music. Individual songwriters and publishers sign up and register their music with the PRO, then the PRO’s issue blanket licenses to individual licensees allowing them to publicly perform any song in the catalog. The PRO’s track what songs are being performed, collect the license fees from the licensees and pay them out to the individual licensors.

You can see an example of how and where a PRO collects royalties on ASCAP’s website. Many other PRO’s have similar collection and tracking methods.

It is important to note that this is all PRO’s do. They are not “publishers,” nor do they promote any specific song in their catalog. Merely signing up with a PRO will not result in a songwriter receiving royalty checks. It is up to the songwriter and his team to actually get his song on the radio, or in ads, or performed in shows – the PRO’s job is only to make sure he gets paid once that happens.

(C) vs. (P) Again

Let’s back up for just one second and revisit our two separate copyrights in music. You’ll recall from our discussion on publishing that one can get copyright protection on both the musical composition and a sound recording.

This distinction comes into play in the US when it comes to Performance Rights Organizations. In the United States – unlike most of the rest of the world - sound recordings do not have a public performance right attached to them. That means only songwriters and publishers need join a PRO, since they are the only ones given a public performance right.

A hotly-debated bill currently in Congress would change that, recognizing a public performance at least for sound recordings played on radio. But unless that passes, recording artists (who are not also songwriters) are out of luck.

Not entirely out of luck, I should say. US Copyright law does recognize a very narrow public performance right for sound recordings – public performance by certain digital audio transmissions. These include satellite radio and certain internet streaming sites. The PRO responsible for licensing this public performance right is SoundExchange, and you can find more information on their site.

Make Sure You Get All Your Money

You may recall from our article on publishing that musical publishers often take a share of royalties a songwriter receives, including from public performance licenses. As a result of somewhat shady practices of music publishers in the past, many PRO’s, including ASCAP and BMI, will split the royalties it pays out, typically half going directly to the writer and half going directly to the publisher. The writer’s half is called the “writer’s share” and the publisher’s is – not oddly enough – called the “publisher’s share”.

If there is more than a single writer or a single publisher on a song, those royalties are divvied up by the PRO and paid out according to the percentages given to them on the song registration (percentages often worked out beforehand by the writers in what is known as a “split sheet”).

[Note: I have been unable to verify the information in the following two paragraphs with ASCAP or BMI or an entertainment lawyer - it represents only what I've found through researching their respective websites, so use at your own risk!]

Things get a little tricky when a songwriter is acting as his own publisher (remember that any songwriter without a publishing company automatically acts as his own publisher). According to the BMI website, if no publisher is listed on a song registration, then the publisher’s share automatically goes to the writer. ASCAP, however, holds onto the publisher’s share if no publisher is listed (at least for song registrations done online), leading to the unfortunate result of a songwriter acting as his own publisher only receiving half the royalties he is entitled to.

Until this changes, any songwriter acting as his own publisher who signs up for ASCAP needs to create his own publishing company to ensure he gets all his royalties. Check out this article by Donald Passman about setting up your own publishing company for one way to go about doing so.

ASCAP or BMI?

If you live outside the United States, the decision about which Performance Rights Organization to join is a simple one – typically, there is only one Performance Rights Organization in each country.

In the US, however, there are three: ASCAP, BMI, and SESAC. Not to knock SESAC or anything, but for the majority of songwriters, the decision comes down to ASCAP or BMI. Songwriters and publishers are prohibited from joining both (you’d essentially be getting paid twice for each public performance, taking money away from other songwriters and publishers), so many ask which one is better to join.

There is no clear-cut answer. You can find people who claim that one is better than the other for certain genres, or for the type of market your work is geared toward. Donald Passman, in his must-have book for musicians All You Need to Know About the Music Business, says about which society is best, “Hard to tell… In the comparisons I’ve seen, ASCAP seems to do a bit better in general, but for some compositions, BMI beats them.”

For  US musicians deciding on which organization to join, the best they can do is read through each organization’s site and decide on their own, or seek the help of their attorney or manager if they have one.

More Resources

• Performance Rights Organizations around the world – Wikipedia has a nice list of PRO’s in many major countries, with links to their respective web sites.

Previous posts in this series

• Music Business 101 – Copyright
• Music Business 101 – Copyright Registration
• Music Business 101 – Licensing
• Music Business 101 – Publishing

Image courtesy of Marfis75