Law & Policy

A Bird in Hand is Worth Two in The Bush: Why Nigerian Artists Are Advised To Register With One of ASCAP, BMI, or SESAC

Sharing is caring!

DBanj PROA couple of weeks ago I was driving back from a house warming party in Houston, TX when I turned on my radio and heard a familiar catchy tune.  Somebody on my radio had a confession and it wasn’t Usher. I quickly pressed my CD player’s eject button as images of the one legged girl from YouTube flashed through my mind. To my utmost surprise, my Naija mix CD did not pop out, instead I saw the greens and whites of my Adele “21” album. Oliver Twist was still playing but none of my Naija CDs were in. My phone rings and it’s Julia (who will be completely thrilled to find her name in this article) screaming…”Omo they are playing Naija jams on 97.9.”  Naija jams…on The Box? This wasn’t the first time but I was still surprised. The DJ followed up with “Chop My Money, You Go Kill Me, Azonto.” If not for the minors in my car, I would’ve stopped at the red light, opened all my doors, run into the middle of the street and directed traffic Azonto style.

After the excitement died down, the aproko inside of me was awakened. I quickly went online and checked each major PRO to make sure that P-Square and D’Banj were getting paid for the airing of their music on American radio stations.  Please believe that they are. But these are not the only Nigerian artists whose music is played in the US. How many Nigerian clubs have we frequented in this America where they play Nigerian music every single weekend? Granted, these clubs might be paying their licensing fees. But to what effect when the very artists whose music makes up most of the club’s music library are not even registered in the United States?  What about the Iyanyas and Lynxxxs, why are they not registered with American PROs when we all know that their music is played at almost every single Nigerian party, club or wedding?

How do Nigerian Artists go about registering with American PROs and is copyright registration required to do so?

Copyright Registration

In the United States, like Nigeria, registration of your musical works with a national Copyright Office is not required, but it is highly recommended since doing so gives certain protection under copyright law in case you should need to sue someone for using you song without permission. Your music actually enjoys copyright protection once the work is created and fixed in a copy or a recording for the first time.

US copyright registration can be done through the US Copyright Office at www.copyright.gov. Registering songs with the US Copyright Office puts your claim of authorship on the public record and may help if ever there is a dispute as to the ownership of your material. Bear in mind that the Copyright Office does not provide legal defense/services. It can however, provide documentation of your copyright in the face of stolen or infringed material.

Registering your copyright with the Copyright Office, and registering your works with a Performing Rights Organizations (PROs) are two totally different things. But none requires the other. PROs are not in the business of registering copyrights on behalf of musicians so artists (or their teams) interested in registering their copyrights have to do so by themselves in a separate transaction.

Performing Rights Organizations

If you have not had the pleasure of reading my uber long paper “International Protection of Sound” I am including excerpts of it below in order to provide background information and brief explanations of how each PRO functions.

Today, music publishers in the United States are usually affiliated with one of three major royalty organizations, namely ASCAP, BMI, or SESAC. American recording artists obtains an accounting of their royalties from their record company and usually do not need to contact any of the broadcast royalty entities, unless the artist is also a songwriter. No writer or publisher may collect from more than one performing rights organization for the same songs at the same time, as dual affiliation is not permitted. But just because a party is affiliated with one organization does not mean that he or she will remain bound to that organization for life. A party may resign from an organization and sign up with another. Usually the contract with the new organization will not begin until the end of the contract with the former, or until the costs of terminating the contract are recovered by the former organization.

Registration with these PROs is not a long or complicated process and can be done by anyone regardless of citizenship.  After all on April 1, 2013, DRAKE PROASCAP announced via its webpage that Grammy Award winning and multi-platinum selling Canadian artist, Drake, had joined its repertory.

Drake’s “Started from the Bottom” track was co-written by Noah “40” Shebib and produced by Mike Zombie, both of whom are ASCAP members.

Artists like Banky W, Beyoncé and Justin Timberlake (to name a few) can also be found in ASCAP’s lengthy repertoire. But just because Drake and Banky are with ASCAP doesn’t mean that ASCAP is the only way to go or that it is the best way. Nigerian artists like P Square and D’Banj can be found in ASCAP competitor, BMI’s, repertoire. Choosing a PRO to represent you is like choosing a cell phone service provider (OK it is obviously more serious than that, but I hope you get the idea).  You have to compare and choose based on your individual needs.

ASCAP vs. BMI vs. SESAC

ASCAP is a not-for-profit membership organization that claims to have the oldest and largest repertory in the United States. It issues a blanket license for its entire catalogue to radio and television stations. Income is not based on the amount of usage, but on gross receipts of the stations reduced by certain adjustments like agency commissions and wire adjustments.

BMI is owned by various entities but operates as a quasi no-for-profit organization. It was established in 1939 to increase competition against ASCAP. It became an alternative to those writers and publishers who did not necessarily want to be affiliated with ASCAP, and wanted a better partner for radio. BMI also operates under blanket licenses for a finite period of time, and charges broadcasters a fee based on gross receipts adjusted by certain fees or costs.

PSquare PRO*SESAC (for whom I currently consult) is the smallest of the three groups, and is a private licensing company. It was initially established to serve European composers not adequately represented in the United States. SESAC operates on a for profit basis and its fees are based on fixed determinants such as market population served by the station, standard advertising rates, as opposed to a percentage of gross receipts as in the case of BMI and ASCAP. SESAC claims to be the fastest growing and most technologically adept of the nation’s performing rights companies due to its international reach and vast repertoire of artists from various genres of music.

Do not infer from my affiliation with SESAC that it would be the best choice for your own music. Artists interested in registering with PROs need to engage in adept research and compare the advantages and disadvantages of each major PRO.

So Where Does The Harry Fox Agency Come In?

The royalties collected by PROs are performing rights royalties, which are earned when a musical work is performed publicly. Public performance occurs when a song is sung or played on radio, television, or other media such as the Internet, live concerts and programmed music services. These organizations grant licenses to various radio/tv stations, hotels, clubs, colleges, restaurants, stores, and others to publicly perform the works in each organizations repertoire.

PROs do not collect for mechanical royalties or sync fees. These fees are paid by record companies and film/TV producers directly to the copyright owner or his or her representative. The Harry Fox Agency is the leader in the US for collecting such fees and granting the associated licenses.

“Mechanical” royalties are those obtained from the reproduction of a piece of music onto a fixed medium such as CDs and cassette tapes.

“Sync” fees are those obtained by TV or film producers from the reproduction of music onto a soundtrack of a film, TV show, or game. The reproduction itself is called “synchronization,” hence the name of the required license.

Remember that registering with a PRO is hardly likely to bring you billions of dollars in payouts but it will give you something extra in addition to whatever it is that you are earning in Nigeria. And considering the ongoing catfight between MCSN and COSON, why not hold some money in your pocket until they lose interest in each other and begin to focus on the artists? A bird in the form of an American PRO in hand is worth two (MCSN and COSON) in their bush of smear campaigns and drama.

-Ollachi Holman

 

Interview with Bond Stanley Ebigbo (Full Interview via Podcast)

Listen to the Latest AML Podcast Episodes

Sharing is caring!

Ollachi Holman

AML intern Ollachi Holman aka “Enzé is a recording artist commonly affiliated with Syndik8 Records. She has been featured on tracks with the likes of Lynxxx, 2Shotz and MI, and has had a few cameos in clubs and albums. A recent law school graduate from the University of Houston Law School, she is pursuing a career in Entertainment Law. Look for her posts on on Mondays and Wednesdays in the AML categories of "Music Law" and "Celebrities Behaving Badly", now until May 2013. Please give her your feedback and let her know how she is doing, what you like and don't like. Thanks!

You may also like...

Leave a Reply

Your email address will not be published. Required fields are marked *