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Sorry ASCAP, A Ringtone Is Not A Public Performance

from the nice-try-though dept

ASCAP and BMI have been pushing all sorts of ridiculous claims over the past few months, trying to squeeze extra money out of pretty much everything, rather than actually doing right by those they represent and helping them adapt new business models based on giving people a reason to buy. Beyond claiming that Congress should make sure their royalties never decrease, they've also been saying they deserve money for things like YouTube embeds (even though YouTube already pays them for that same traffic) and the 30 second previews on iTunes and other music stores. However, the most ridiculous of all was trying to claim that ringtones are a public performance, and thus mobile phone providers need to pay ASCAP/BMI. The thing is, ASCAP and BMI already get paid for ringtone purchases -- but this was an attempt to get a second payment on top of that for the fact that people might hear the ringtones.

Thankfully (as a whole bunch of you have sent in), a judge wasted little time totally rejecting that reasoning. The court pointed out that the Copyright Act is pretty clear that there's no royalty needed for any sort of "performance" that isn't done for commercial advantage and "customers do not play ringtones with any expectation of profit." It's a pretty complete rejection of an obvious stretch by ASCAP.

We might hope that ASCAP will take this and begin to recognize that the best way to serve songwriters is helping them embrace new business models, but we expect that instead they'll keep looking to squeeze more money and double dip from other providers... while continuing to pay industry insiders to smear those who want to protect consumer rights.
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Filed Under: copyright, double dipping, public performance, ringtones, songwriters
Companies: ascap, bmi, eff

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  1. identicon
    Matt Gray, 19 Jan 2010 @ 2:23pm

    Ringtones and public performance

    Highly disagree with the ruling. If a song is played on the phone, one that you've created, you should get a royalty from the performance as a writer. If a song is played on the internet a kajillion times, you should get royalties from those performances. That's how songwriters get paid. People want to be entertained but they don't want to pay the price for entertainment anymore. You know what it reminds me of? All the freebies that were given out to media so they would review the product. The artist is not getting paid for those cd's that are being sold to used cd shops- however, they are getting free publicity. So the question is: Is a ringtone considered, by the eyes of the law, free publicity? I don't think it is because those ringtones are being bought and a third party is making money from the purchase of the ringtone. Writers ARE being shortchanged here and perhaps all the songwriters, every musician who needs income to survive should go on strike and the writers should take back all their songs so nobody can enjoy music anymore. That's not a great idea but man, where would we be without songs? We'd all be freaking out from the chaos that would create. A songwriter needs to be paid for his or her art. That is the bottom line. That's what royalties do- supply income to be able to feed their families. I call shenanigans on Congress. Thanks, jerks!

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