# PROs fight for performance royalty on Digital Downloads...



## Brian Ralston (Sep 17, 2009)

I post this link here because for those working in the industry or those wanting to get into the industry...we must all be aware of what is going on in regards to performance royalties and the fight to keep them as an important revenue stream for composers and publishers. As more and more movie, TV shows and music albums are being delivered via digital downloads and not broadcast frequencies...the current performance revenue model as written in law is becoming obsolete. 

ASCAP, BMI, et al... are lobbying congress to change the laws to ensure that these "digital" performances will be eligible for these royalties. As most composers these days seem to be so willing to give up their up front licensing fees and composing fees in exchange for the hope of performance royalties down the road...and knowing that these royalties are increasingly becoming harder to collect with new media...if nothing is doing to change this now...we will soon be facing no viable income stream for creating anything any more. 

So...read...learn...write to you congressman your thoughts on the matter, whatever they may be.

http://news.cnet.com/8301-1023_3-10355448-93.html

o-[][]-o


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## midphase (Sep 17, 2009)

When I read stuff like that, I really feel that it's about time for composers to unionize and stop this "performance" royalty nonsense and embrace the idea of "residuals" like just about every other freelancer working in the entertainment industry today.

Technically a music or movie download shouldn't constitute a public performance anymore than listening to one of your CD's at home does. The iTunes store is nothing more than a replacement for brick-and-mortar music and movie stores. We don't get public performance royalties based on CD and DVD sales (although we would get Residuals is we had a union who would fight for that), so why should the iTunes store be subject to a different treatment?


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## Brian Ralston (Sep 17, 2009)

The U.S. department of Labor has denied the composers the right to form a union (multiple times) despite the fact that it was based on the WGA structure where the writers have a very similar job (on paper) to what we do. The last time composers tried was in the late 70s I believe. 

Also...forming a union would also change the composer's ability for ownership of the music they create (which already happens now anyway when libraries and studios and production companies ask use to sign those rights away). But then again...that is the residual the union would attempt to re-negotiate. 

I really don't see the industry or the studios agreeing to deal with a composers union even if we were allowed to form one. It really isn't in the interests of the big name guys who are already making millions with the way the system is now. So I really don't seeing them sign on to it. By not being in the union...they can make their own rules of employment and ultimately...more money than they would under union organization. Sure, it would make the up front fees a lot better for new guys trying to get in the biz. But it would also decrease the back end "performance" possibilities significantly. But I do conceed your point that they are already decreasing significantly...so why not? I don't know for myself really. I just really don't know any more.

I do know that the way the law is written right now...we own everything until we willingly sign it away and assign it to someone else. (which usually happens anyway) There is a lot of power in that inherent fact...as long as there is demand for one's work in the first place.


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## kdm (Sep 18, 2009)

Would it work to push PROs to redefine instrumental music to fall under the same category as songs to establish writers' royalties on sales? 

To me, that seems to be one distinguishing factor limiting composers from getting residuals. I do agree with Kays' premise that without organization to give composers clout, we are just fighting a rather large battle alone for the most part, and most of us are going to lose most, if not all of the time, unless we become an A-list composer with a high individual value. What is missing is value for composing as an industry itself.


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## midphase (Sep 19, 2009)

"The U.S. department of Labor has denied the composers the right to form a union (multiple times) despite the fact that it was based on the WGA structure where the writers have a very similar job (on paper) to what we do. The last time composers tried was in the late 70s I believe. "


Composers were denied because they wanted the "best of both worlds" when it came down to it. They wanted PRO's and retaining of ownership rights, yet they wanted all the benefits of employment. 

Didn't work, and I think our generation is now seeing the effects of the previous generation's short sightedness.

To get an idea of how public opinion is shaping up, read some of the user comments on here:

http://www.macworld.com/article/142880/ ... lties.html

No way ASCAP or BMI are going to win this fight.


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## midphase (Sep 19, 2009)

Related article on unionizing hereL

http://www.filmmusicmag.com/?p=37


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## The_Dark_Knight (Sep 19, 2009)

Socialize it. Can't trust people to give you food money for art, talent and dedication. What you can expect is a lot of put downs and inferiority treatment and a lot of infighting over who's the most deserving elite in the group. This is a proven fact of centuries worth of experiences. It's written somewhere in the history of psychology. And I know the history of psychology.

We need to socialize the internet before it's too late....I'm serious. o=<


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## kdm (Sep 19, 2009)

midphase @ Sat Sep 19 said:


> To get an idea of how public opinion is shaping up, read some of the user comments on here:
> 
> http://www.macworld.com/article/142880/ ... lties.html
> 
> No way ASCAP or BMI are going to win this fight.



Why not respond - voice an opinion? I did. But everyone needs to. Most people have no idea that composers and musicians need to make a living.


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## rgames (Sep 20, 2009)

I've never been convinced that a composers' union would help anybody but the union organizers. The bottom line is that composers produce a product that is essentially a commodity. How often do people complain about the quality of the music they hear? More importantly, how often do they react in a way that makes it clear they're willing to pay more for better music? I just don't see it.

As long as the demand side of the market works that way, I don't see supply-side efforts like unionization making any difference. I wish that weren't the case but I think it's a sad fact.

Regarding royalties/residuals/mechanicals/etc: all of that comes out in the wash. If you know you're not getting any back-end money, demand more up front. If you don't get what you asked for, well, that's the market at work. Step aside, there are 10,000 others guys who would be glad to take the deal you refused.

rgames


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## kdm (Sep 20, 2009)

rgames @ Sun Sep 20 said:


> If you don't get what you asked for, well, that's the market at work. Step aside, there are 10,000 others guys who would be glad to take the deal you refused.
> 
> rgames



And isn't that one of the main problems? Too many people who don't know how to, or want to make music an actual career; or foolishly believe that if they work for free/cheap long enough, Steven Speilberg or Sony Music will come knocking on their door with 7 figure contract?

It's people like this that create a low-ball market. But, they can have it that market, as long as it doesn't continue to drag the better jobs with real budgets down with it.


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## The_Dark_Knight (Sep 21, 2009)

x goes the weasel . . .


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## Brian Ralston (Sep 21, 2009)

The_Dark_Knight @ Sun Sep 20 said:


> I'm gonna tell you my personal experience in music industry humility.
> 
> ......
> 
> ...



Wait...what???? :?


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## kid-surf (Sep 21, 2009)

midphase @ Sat Sep 19 said:


> Composers were denied because they wanted the "best of both worlds" when it came down to it. They wanted PRO's and retaining of ownership rights, yet they wanted all the benefits of employment.



True...it's like, it's so ingrained, by now, it'd be hard to get composers to see giving that up as a good thing. At present, they'd be terrified that they'd be giving up EVERYTHING. But that's one aspect I like about screenwriting...fuck it...take it, you own it...just PAY ME...and pay me RIGHT NOW...and pay me a relatively decent rate. After all, with most other art forms you SELL the work and lose all rights to it as a property. Why should music be any different, fundamentally? Not that a composer shouldn't have all sorts of deal points etc.

Seems like there "should" be a composers union, but, I don't see how it's possible at this point. The only dudes who, seemingly, 'could' push it through have no incentive to do so, obviously. They're sitting pretty, so..."who cares about the newer guy's fee/quote etc." I imagine they feel like "Well, shit...I clawed my way to the top, they'll have to EARN it just like I did, F'them." Not that I agree with that philosophy...

When I think of 'screenwriter vs. composer' there are two key leverage tools missing for the NEWER composer. 1) Union. 2) Agent. The union mandates the minimum fee (etc.) and the agent fights to make that deal happen...always asking for MORE than they think they'll get, and sometimes getting it. Not only that, the agent uses leveraging tactics that, at times, have less to do with said client's credits/body of work/temperature and more to do with the agent's cleverness. 

Btw - I list "agent" because a new screenwriter w/no credits can acquire an agent who is at the very top of the game, more or less.

Now to the example of the agent's cleverness...

Example: to get their client "in a room" with a producer who is dead set on using another guy. At this point the client has no idea this particular producer doesn't want to meet with him, producer is set on using someone else. The agent may then dig around to find ways to subtly introduce doubt in the producer's mind about the 'not you' guy, but never lies. Maybe the producer isn't aware that the 'not you' guy crapped-out on his last Studio gig. So, of course, the agent (byway of agents being privy to the most information in town) suggests that the producer makes some calls to confirm that "so-and-so" wasn't happy with 'not you's' work. Producer does, confirms. Suddenly...producer is interested to sit down with you. Agent calls you, tells you the producer would love to meet with you about the project. And yet, you have no idea what went down behind closed doors, as it's better you assume you were the first choice, with your fragile ego and all. This way you walk into the meeting with confidence. After all, it's ultimately up to you to close the deal with your brilliant ideas about what the films should BE.

That's the type of Hollywood gamesmanship that goes on all day long with these Suits. No composer nor screenwriter is privy to it (not completely), nor do they (WE) have the relationships to change the course of events that way. No friggin way...

Underhanded? Well, wouldn't you want your agent to get you in the room over someone else if you knew you were better than the other guy? Your agent believes you are, or they wouldn't have signed you, they would have signed the other guy. Besides, the other guy's agent may be trying to cock-block you anyway...or maybe they're, instead, trying to sign you away from your agent. Status quo...

To imagine a new-er-ish composer out there having to fight that TYPE of battle on his/her own...WOW! S/he can't, s/he doesn't have those deep seated RELATIONSHIPS, nor the INFORMATION. And you'd only come off looking like an asshole even if you did. It's no surprise the fees are so low and the job not respected - as a newer composer, that is - often, nobody is out there fighting for you in these ways, day-in-day-out. When really, your focus should be on the music.

I'm working with 2 agents on the project I'm dealing with now (two agents both at the same company obviously - neither of which is my wife, btw). Not only that...I've got the WGA which says "this is the very LEAST you can pay him for this". That's two big powerhouses who've got my back, so to speak. To imagine what I'd be capable of if it were only me, not only trying to get TO the folks who buy, but to then have to MAKE the deal myself, and in a climate where they could then offer me as little as they cared to, depending on which way the wind was blowing that day. Yikes! I'm not sure I'd be able to pull that off, nor close with a decent fee/deal points even if I did. It'd be very easy to take advantage of me in that scenario. It would force me to be a little desperate (btw - my wife gave me the advice of: "never appear desperate for a deal even with your agent, never mention money, as it is their job to always get you the most they can get, and they will). The other aspect being: the agency offers long term dealings, with many clients, to said buyer. The composer can't say "What you do in this deal could effect whether or NOT we (agency/department) think of you FIRST for something else. We're looking for what's fair for our client". That's leveraging, perhaps, hundreds of millions of dollars against this one deal, for YOU. Makes it so that the buyer can't "fuck" you. Maybe you don't get an insanely brilliant deal, but you won't get fucked. 

True, I lose ownership of EVERYTHING (as a writer). But look at it this way, when an architect builds a home s/he NEVER owned it to begin with. Ownership isn't the issue, it's the idea of totally getting fucked in the ass that composers are afraid of. An architect isn't going to build you a house for the "exposure", or, "backbend". They merely seek to be paid what's FAIR. I can imagine someone immediately saying "well, fair market value is so low!!!". True. BUT! Without the WGA and a powerful agency behind a screenwriter, fair market value would pennies on the dollar for screenplays, too...if not FREE. You don't think there are trillion screenwriters who'd GIVE AWAY their work just to be in business? Of course there, but thankfully that would be illegal in Hollywood. Hey, that's exactly what they offer in the indie world (often times) for a screenwriter. But really, nobody is making money on those films anyway...so? This shitty rate a composer may get, trust me, you're making more than the director when doing the math on time spent. It's the very reason I CAN'T direct an indie film at this point. For me, it wouldn't be smart to invest two years of my life on ONE project which, going into it, clearly it won't make money. I don't need to call myself a director THAT bad. -- I'd rather call myself a TV-creator...or Studio Film screenwriter...anything that actually puts a decent amount of money in my pocket for working suck long and grueling hours.

I'm starting to run long as usual...I'll wrap soon...maybe... 

Brian mentions "demand for one's work". When I think about "what is the demand for my own work", it's this: The industry folks who like it see it as "different", as it's own "entity", or "branded". As simple and as obvious as that directive sounds, I have to believe that the same is true for composers, far as creating "demand", hence leverage. Clearly, if I were writing works that, well, "worked" but did not call attention to themselves as being the thing "you can ONLY get from me and nobody else in town", well then, WHAT is my leverage? As well, what is my initial leverage to get my foot in the door? The answer is; it was just that, creating something few have done, or could do, or thought of, or however we want to say it. Think about it. I couldn't have leveraged an agent at a Big-5 agency had I not done that, I couldn't have leveraged meetings with with Class-A folks who wanted to be in business w/me, so on and so forth, had I not done that. And really, why shoot for the bottom tier anyway? I really feel that, in this climate, a composer's best option, though it's somewhat of a LONG range prospect; is to BEAT FOLKS OVER THE FUCKING HEAD with how unique and different your music is, whereby there is NO QUESTION what your "identity" is. Yet, with a very COMMERCIAL sound/sensibility. Easier said than done, right? I agree. But the same can be said for screenwriting. 50,000 screenplays a YEAR registered with the WGA (and how many go unregistered?), it too is a swamped market. In fact, it's cheaper to be screenwriter so, truly, just about anyone believes they can do it. How hard can it be, right? I've written letters, or on Facebook, that's one step away from writing a friggn movie or tv-pilot, right!? As if... 


-CONTINUED-


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## kid-surf (Sep 21, 2009)

...Thing is. I get it. To get a J-O-B, in the meantime, requires a composer to write much safer, more palatable and predictable music for every tasteless director/producer out there who doesn't understand music, and who likely just wants a smash-and-grab HIT. But look at it from their perspective, it's all just a bunch of strings no matter what you do. Despite what they say, they can't REALLY decipher if you're better than the next guy, hence the whole credit thing, even at the studio level. But when looking at the studio level guys, more specifically, A-list, those guys each have established their calling card sound that no one else does quite as well as them, Unless a producer/director can clearly discern that one's music is DIFFERENT, I don't see how one could move to the next level. Subtlety doesn't work with these people in screenplays either. And...I believe one mistake some composers make (career wise) is to write to please other composers. Writing in a vacuum, so to speak. Likewise, I DO NOT write for other screenwriters. I think most of their stuff sucks anyway (honesty), so who cares what they think my scripts. They probably hate my scripts to. So what we feel about each others work is totally irrelevant. 

Ultimately, I believe the key is to SEPARATE yourself as much as possible from every other composer. Ironically, to get the gigs on the way up it's about sounding more like everyone else, but hopefully better. Just, I don't believe that will take you all the way. I believe that approach ends at a glass ceiling. At that point it's pretty late in the game to suddenly find your "voice/sound/calling card". Considering the newer composer lacks two MAJOR tools to fight this battle (Union/Agent), I feel the battle, unless something changes, is with creating that thing that they can ONLY get from you.

So...How do you boil down your "voice" as a composer into something that goes beyond good and speaks to greatness (highly commercialized greatness, that is  ), because as they say "good isn't good enough, it has to be great". At least that needs to be the PERCEPTION.

Nutshell: Union would be a good thing, IMO. Until then, and in spite of, creating that "voice" seems to be the key to the city.


You know, just Kid-Surf rambling, as usual...you may disagree with every word of this. No prob...


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## The_Dark_Knight (Sep 21, 2009)

Brian Ralston @ Mon Sep 21 said:


> The_Dark_Knight @ Sun Sep 20 said:
> 
> 
> > I'm gonna tell you my personal experience in music industry humility.
> ...



People who work for less than the going rate to get work. Bottom feeders.


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## midphase (Sep 21, 2009)

Dark Knight,

With all due respect, could you share your identity? (please don't say Bruce Wayne). I think it's hard to view a post like yours within the right context without knowing a bit more who you are or what you have done.


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## Brian Ralston (Sep 21, 2009)

The_Dark_Knight @ Mon Sep 21 said:


> And worst of all Brian Ralston hates my kind.
> 
> People who work for less than the going rate to get work. Bottom feeders.



Ahh...yes...scum of the earth. Evil incarnate. LOL! :wink: 

NO, NO...I do NOT "hate" people who work for less than the going rate...let's clear that up. I understand the motivations behind it. I understand the frantic desire to make this composing thing more than just a hobby. So..."hate" is NOT AT ALL the right word. Perhaps, disappointed maybe? Frustrated at the lack of seeing the long term implications on the profession as a whole. 

Only because in the long run, it hurts us all by re-setting expectations of how a composer is valued and it really does very little for the individuals to gain the type of reputation and credit list that would advance a career. Could one gain some experience with that philosophy?...maybe...but we have all played out those arguments in other threads before. 
o-[][]-o


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## kid-surf (Sep 21, 2009)

> Kid-surf I think you make some interesting observations as usual.



Thanks. Somewhere in my sea of words I hope to make at least one interesting observation. Sometimes I do, sometimes not.



> don't wanna steal anyone else's hype machine.



Not sure I "get" that comment. Hype here is worthless. The only hype machine is Hollywood. If that's in regards to me talking about myself, I do so because it's real world as opposed to hypothetical. I never trust books about this stuff. I'd rather hear personalized experiences, and therefore theories based largely on that. 

Socializing -- This sounds like an idealistic philosophy on the surface. Do you mean to suggest people out there should necessarily playing fair, doing the right thing, etc...? Or something more tangible?

The one ENORMOUS factor that establishes the fundamental difference between Hollywood Unions (Guilds) and any other Union is that FAME is not currency to say, a fledgling plumber. That plumber isn't going to seek to undercut everyone JUST to find fame...Plumbers don't have to contend with that type of illusive currency where those in the entertainment business do. 

It's not that the composer or screenwriter necessarily want to be famous, then again they do. But it's that we clearly have seen what people NOT in this town are willing to do for FREE under the guise of it somehow leading them to the inner sanctum of this town. It's not only about the money...


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## kdm (Sep 22, 2009)

kid-surf @ Mon Sep 21 said:


> It's not that the composer or screenwriter necessarily want to be famous, then again they do. But it's that we clearly have seen what people NOT in this town are willing to do for FREE under the guise of it somehow leading them to the inner sanctum of this town. It's not only about the money...



To some degree, the very perception that LA is the only path to a career in entertainment is both self-fulfilling and self-defeating. 

There are many of us not in LA that are *not* willing to do anything (work for free/cheap), at any cost, just on the snowballs' chance we'll magically be teleported into that inner sanctum. 

I'm here (and elsewhere) voicing my opinion (however comparatively irrelevant) on the value of music and composing, and I don't work for free, or even cheap by most standards. Quite simply, fame itself doesn't pay the bills and the temptation of it makes for a very poor business plan. I can see from this forum that I'm not the only non-LA person supporting composers' rights to fair compensation. Surely there is a better way that doesn't involve drawing a line in the sand at the city limits of LA.


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## midphase (Sep 22, 2009)

"The one ENORMOUS factor that establishes the fundamental difference between Hollywood Unions (Guilds) and any other Union is that FAME is not currency to say, a fledgling plumber. That plumber isn't going to seek to undercut everyone JUST to find fame...Plumbers don't have to contend with that type of illusive currency where those in the entertainment business do. "

This one is an incredibly powerful comment and right on the point. We work in an industry that rewards itself with awards, press and special perks for those who achieve a certain status. The only other industry who relies so heavily on "fame" is the sports industry (who some would say is a branch of the entertainment industry).

Too many music/audio/creative colleges have shiny advertisements with Grammy-Winning alumni (did they even actually graduate?) boasting about their feats. If you buy the pants from this ad, you'll look just like the model wearing them (actually Kid-Surf will for real...but I digress).

I personally put a lot of the blame on creative arts colleges, I have been vocal about this in the past and I think they have all contributed in not a small way to the oversaturation of the market, all to the extreme delight of their respective boards no doubt!


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## David Story (Sep 22, 2009)

Wonderful thread, thank you guys.

The Society of Composers and Lyricists has a viable plan for unionizing. They've done it before, then lost it. It can be done again, but it's all about political skill. 

The point of law is: Are composers employees or independent contractors? The NLRB has evidence that points both ways. 

When it's time to call your congressperson, do.

Many A listers are supportive of their fellow composers. Those who aren't don't have to join the union/guild.

Digital downloads are the latest example of how intellectual property law is kept fragmented and complex, to favor big publishers over authors. ("Publisher" in the general sense.)

We could win a new definition of performance rights. Or a union could get residuals, while letting publishers keep the copyright. Either or both.

Music has the ability to attract an audience on its own, without being synced. That's a soundtrack release for us film/game composers. Most contracts give that right to the publisher. If you're lucky enough to get a soundtrack release, you should get income. A union or performance right change could secure that income.

Of course everything could go right, or fall apart. But it make sense to lend your voice to the organizing efforts. That's the way to lift your ship and your peers'.
I just wrote both our senators.

My 2c...


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## kid-surf (Sep 22, 2009)

kdm -- Promise. You misunderstood my point (See Kay's post -- particularly about me modeling  ). I can understand how you did, I could have phrased it more clearly. But, you know...in a sea of words things get muddled. 

No, my point was squarely the fame factor and how that complicates the environment beyond your typical Union environment, job environment, however else it factors in. You know?

Otherwise, I agree with your points.


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## kdm (Sep 22, 2009)

kid-surf @ Tue Sep 22 said:


> kdm -- Promise. You misunderstood my point (See Kay's post -- particularly about me modeling  ). I can understand how you did, I could have phrased it more clearly. But, you know...in a sea of words things get muddled.
> 
> No, my point was squarely the fame factor and how that complicates the environment beyond your typical Union environment, job environment, however else it factors in. You know?
> 
> Otherwise, I agree with your points.



Hey kidsurf - I actually did understand your point was directed at fame alone. My comment was a generalization that I tagged on - didn't intend that portion to sound like a response to you - sorry about that. 

You are exactly right on fame/currency.


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