Meet ASCAP: Protecting the Music

For more than 50 years, Smith, Gambrell & Russell has represented the American Society of Composers, Authors and Publishers (ASCAP) in all music copyright infringement cases brought in the state of Georgia.

For more than 50 years, Smith, Gambrell & Russell has represented the American Society of Composers, Authors and Publishers (ASCAP) in all music copyright infringement cases brought in the state of Georgia. SGR’s work with ASCAP began with the work of partner I.T. Cohen, who became Southern General Counsel of ASCAP in 1939. When ASCAP became active in Georgia, Cohen did it all. He would personally investigate bars, restaurants and radio stations to determine if they were playing ACSAP members’ music without a license from ASCAP. If they were, Cohen would either license them, or draft a complaint and bring suit against those infringers who refused to take an ASCAP license voluntarily.

What is ASCAP? The American Society of Composers, Authors and Publishers was founded in New York in 1914 and is the oldest performing right licensing organization in the USA. It is the only U.S. performing right organization owned and run by its writer and publisher members. ASCAP was founded so that creators of music could be paid for the public performances of their works and users (licensees) could comply with the federal copyright law.

By the end of the 19th century, the musical stage had become a major form of popular entertainment. Increasing economic value was attached to dramatic performances of music, especially light opera and operettas, the precursors of the uniquely American art form, the musical comedy. Many of these performances were unauthorized performances, however, from which the copyright owner derived no financial return. In response, Congress extended the right of public performance to musical works. The amendment of the copyright law in 1897 provided that any person publicly performing any copyrighted dramatic or musical composition without the consent of the copyright owner would be liable for damages to be assessed at a sum not less than one hundred dollars and potential criminal misdemeanor charges.1 Prior to the 1897 Amendment, the copyright laws did not grant a performance right in music; protection was limited to duplications of the work in copies, such as sheet music.2 A mechanism was needed to bring music creators and music users together to enforce the performance right.

Europe was far ahead of the United States in developing performing right societies for music. It was recognized that, as a practical matter, it would be impossible for a single copyright owner to determine who was performing his music and to take the necessary steps to license them or protect his rights through lawsuits for infringement. On the other hand, even law-abiding users of music would find it equally impossible to find the owner of the copyrighted composition and negotiate an individual license with him.

To solve these problems, collective licensing organizations, termed performing right societies, were formed in many countries. The first such society was formed in France in 1851. The principal goal was to enable the writers and publishers of music to license all nondramatic public performances of their works, and to serve as a clearinghouse for music users. By means of a blanket license, the user is able, in one transaction, to obtain the right to perform all works of all members of the domestic society as well as works of affiliated foreign societies, without burdensome and costly administrative and record-keeping requirements.

It wasn’t until 1910 that the idea of forming an American society was proposed by the Italian opera composer Giacomo Puccini. He told his American publisher, George Maxwell, of the role played by the Italian performing right society. Maxwell discussed the idea with his lawyer, Nathan Burkan. In October 1913, eight writers and publishers and Burkan met in Luchow’s Restaurant in New York City and agreed to form the American Society of Composers, Authors and Publishers — ASCAP. Others, including Irving Berlin and John Philip Sousa, joined ASCAP as soon as it was formed.3

All members of ASCAP grant it the nonexclusive right to license nondramatic public performances of their works. The members authorize ASCAP to bring suit in their name against infringers and appoint ASCAP attorney-in-fact to conduct and resolve such suits. ASCAP collects royalties from bars, restaurants, radio stations, television networks and stations and, more recently, Internet music providers, among many other entities, and pays royalties to its members.

Under the blanket license, users pay only a single annual license fee to ASCAP for their right to use any and all of the members’ musical works and the works of members of affiliated societies throughout the world. Licensees do not have to account separately and pay for each work performed. Complete information on the schedule of fees is readily available from any ASCAP licensing office, and from the main office in New York City. Information is also available on ASCAP’s Web site, www.ascap.com.

ASCAP currently has approximately 140,000 writer and publisher members. Among many others, members of ASCAP include Stevie Wonder, Bruce Springsteen, Kenny Loggins, Hal David and Burt Bacharach, Wynton Marsalis, Quincy Jones, Diane Warren, Lionel Richie, Rod Stewart and Madonna. ASCAP’s members also include the successors to the estates of legendary composers and lyricists such as Aaron Copland, Morton Gould, George and Ira Gershwin, Richard Rodgers and Oscar Hammerstein, II, Cole Porter and Henry Mancini. ASCAP participates in a wide range of music industry concerns, including sponsoring events, fostering the development of new talent, and supporting music-related philanthropic activities through The ASCAP Foundation.

ABOUT JOINING ASCAP

You can join ASCAP as a writer, a publisher or both if you meet the eligibility requirements. To become a writer member you must be the writer or co-writer of a musical composition or a song that has been commercially recorded, or performed publicly, or performed in any audiovisual or electronic medium or published and available for sale or rental. Publisher applicants must contact an ASCAP membership office. Further information about joining ASCAP can be found on their website.

AMERICAN COMPOSERS FORUM

In addition to representing ASCAP, SGR is also representing the Atlanta Chapter of the American Composers Forum in licensing a CD that was created by two of its composer members and two Atlanta Boys & Girls Clubs. With the help of its funder, The Arthur M. Blank Family Foundation, the Atlanta Chapter’s RE-MIX Program gave members of two Atlanta Boys & Girls Clubs the chance to find out exactly what it takes to create and record a CD. The program was the Chapter’s after-school initiative and its first collaboration with Boys & Girls Clubs. It also represented the first composer residency for Boys & Girls Clubs of Metro Atlanta, an organization that has provided after-school programs and facilities since 1938. For more information about the success of the program, go to The American Composers Forum’s Web site at www.composersforum.org.

ENDNOTES


  1. Korman and Koenigsberg, Performing Rights in Music and Performing Right Societies. Journal of the Copyright Society of the USA, Vol. 33, No. 4, July 1986 at p. 348. 
  2. Id. at 336; Act of January 6, 1897, Ch. 4, 29 Stat. 481 (the “1897 Amendment”). 
  3. Hubbell, The Story of ASCAP (Unpublished Memoir); Waters, Victor Hurbert, A LIFE IN MUSIC (1955), 433 — 34.