A performing rights society (also called a performing rights organization (PRO)) is
|“||an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners of such works, such as the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc.||”|
|“||an organization that provides intermediary functions, particularly collection of royalties, between copyright holders and parties who wish to use copyrighted works publicly, e.g., broadcasts, performance venues, and restaurants.||”|
How it works in the United States
Songwriters and music publishers almost always associate themselves with a PRO, which is responsible for licensing their public performance rights. The two largest PROs — the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) — together represent around over 90% of the songs available for licensing in the United States. ASCAP and BMI operate on a not‐for‐profit basis and are subject to antitrust consent decrees that impose constraints on their membership and licensing practices. In ASCAP's case, this includes an express prohibition on licensing any rights other than public performance rights.
In addition to these larger PROs, there are two considerably smaller, for‐profit PROs that license performance rights outside of direct government oversight. Nashville‐based SESAC, Inc. was founded in the 1930s. SESAC’s market share of the performance rights market is unclear, but appears to be at least 5% and possibly higher. Global Music Rights (“GMR”), established in 2013, handles performance rights licensing for a select group of songwriters. While ASCAP and BMI’s consent decrees prohibit them from excluding potential members who are able to meet fairly minimal criteria, SESAC and GMR have no such restriction and add new members by invitation only.
- 17 U.S.C. §101. A similar definition is set forth in 17 U.S.C. §114(d)(3)(E)(ii).
- ARSC Guide to Audio Preservation, Glossary, App. B, at 228.
- See Ben Sisario, "Pandora Suit May Upend Century‐Old Royalty Plan," N.Y. Times (Feb. 13, 2014) (full-text).
- About Us, SESAC, http://www.sesac.com/about/about.aspx.
- See Chris Versace, The Future of Streaming Music Rests With Congress, Fox Business (June 23, 2014) (full-text) (SESAC “controls approximately 5% of the market”); In re Pandora Media, Inc. (“Pandora Ratesetting”), 6 F. Supp. 3d 317, 351 & n.55 (S.D.N.Y. 2014) (noting that during license negotiations SESAC had used a 10% figure to describe its market share, but that the actual figure “is impossible to know with certainty”).
- See GMR, http://www.globalmusicrights.com; see also Ed Christman, Gail Mitchell, and Andrew Hampp, Pharrell to Leave ASCAP for Irving and Grimmet’s Global Music Rights, Billboard (July 25, 2014) ([http:/www.billboard.com/articles/business/6188942/pharrell‐toleave‐ascap‐for‐irving‐and‐grimmets‐global‐music‐rights full-text]); Ben Sisario, New Venture Seeks Higher Royalties for Songwriters, N.Y. Times (Oct. 29, 2014) ()
- ASCAP must admit anyone who has published a single musical work or is actively engaged in the music publishing business; BMI similarly accepts anyone who has written at least one musical work that is likely to be “performed soon.” See United States v. ASCAP, No. 41‐1395, 2001 WL 1589999, 2001‐02 Trade Cas. (CCH) ¶ 73,474, § XI (S.D.N.Y. June 11, 2001) (“ASCAP Consent Decree”); United States v. BMI, No. 64‐civ‐3787, 1966 U.S. Dist. LEXIS 10449, 1966 Trade Cas. (CCH) ¶ 71,941, § V (S.D.N.Y. 1966), as amended by, 1994 U.S. Dist. LEXIS 21476, 1996‐1 Trade Cas. (CCH) ¶ 71,378 (S.D.N.Y. 1994). The most readable version of the current BMI consent decree is the version provided on the Department of Justice’s (“DOJ’s”) website, and is the version cited throughout this report. See United States v. BMI, No. 64‐civ‐3787 (S.D.N.Y. Nov. 18, 1994) (final judgment) (“BMI Consent Decree”) (f307400/307413.pdf full-text).
- Radio Music License Comm., Inc. v. SESAC, 29 F. Supp. 3d 487, 498 (E.D. Pa. 2014); Pandora Ratesetting, 6 F. Supp. 3d at 351; GMR (full-text).