Analog TV and Internet Usage
by Jason Walker

(Originally published in Smart Licensing Volume 10, Number 3. September 2006)

As broadcast television stations embrace new platforms to deliver their local programming, they are beginning to recognize the need to expand the scope of rights they license from their news theme and production music library providers. While stations can expect to pay more for a broader grant of rights, they should also try to avoid licensing rights directly from a music provider that they have already licensed from ASCAP, BMI and SESAC.

Analog TV
Local television station blanket and per program licenses both grant stations the right to broadcast any and all music in a given society’s repertory over their analog signal for a monthly fee.  The two forms of license differ only in the manner by which these fees are calculated.

Stations on an ASCAP or BMI blanket license pay specified monthly fees that do not reflect the amount of music they broadcast, nor do these fees reflect whether stations have obtained the performance rights for any music through a direct license.  Although the recent SESAC arbitration award specifies that blanket license fees be partially allocated to stations according to the amount of SESAC music contained in the programs they broadcast, stations on a SESAC blanket license cannot further reduce their allocated blanket fees through a direct license.  As a result, there is no economic incentive for stations on an ASCAP, BMI or SESAC blanket license to also license the performance rights to music used in their local programs directly from their music provider.

Alternatively, stations on a per program license pay a fee that varies depending on how many programs contain music from a society’s repertory that has not been otherwise direct licensed.  Per program stations often find it economically attractive to license the performance rights directly from their production music provider if they intend to use that music regularly in their local programs.

Performance rights to music used in promotions and commercials that stations broadcast over their analog signal are already granted in the blanket and per program licenses offered by ASCAP, BMI and SESAC.  Consequently, there is no economic incentive for stations on either a blanket or per program license to secure a direct license from their music provider for these types of uses.  It is important to note that although stations do not need to license the performance rights to music used in promotions and commercials (or PSAs and logos) directly from their music provider, other music licensing issues do exist.  Rights of reproduction (i.e., synchronization and/or master use rights) may also be required for these types of uses.
Internet

The most recent ASCAP, BMI and SESAC blanket and per program licenses also grant stations limited performance rights to music used on their web site, which may obviate the need to license these same rights directly from production music providers.
Under these licenses, stations are permitted to offer simultaneous retransmissions (i.e., streams) of their locally-produced and aired programs.  And while the ASCAP and SESAC licenses also permit stations to offer archived retransmissions of all of their locally-produced programs, the BMI license limits coverage of archived retransmissions to local newscasts and local news based public affairs programs.

Although the ASCAP and BMI licenses do not explicitly state that the grant of performance rights for simultaneous and archived retransmissions of local programs also extends to the commercials, promos and PSAs contained therein, several industry experts agree that coverage for these incidental uses is implied.  The SESAC license does make it clear that these incidental uses are covered.

Stations are also granted performance rights to music used in content made available on their web site that is designed to promote viewership of the station and its television programming.  While the ASCAP license grants performance rights for this type of use without restriction, the BMI and SESAC licenses each require that: (a) no single performance of this type exceeds 30 seconds in duration, and (b) the total duration of all BMI or SESAC performances of this type does not exceed 15 minutes.

ASCAP and SESAC each offers these internet rights at no additional fee and with no additional reporting requirements.  BMI currently bills television stations their allocated share of the industry-wide BMI Internet blanket license fee as set forth in Exhibit A of the BMI blanket and per program licenses.  In addition, stations are required to complete and send Exhibit B to BMI once they use BMI music in their web site and stations may also be asked by BMI to complete and return Exhibit C each year.

It should be noted that the internet rights described above do not extend to sections on a station web site where members of the public are charged a fee.  For such uses, the station would need either a separate Internet license from the appropriate society or a direct license from the company that owns or controls the copyright, such as their production music provider.

It’s worth reiterating that even though the current ASCAP, BMI and SESAC blanket and per program licenses grant performance rights to the most common uses of music on station web sites, rights of reproduction (i.e., synchronization and/or master use rights) may also be required.  Please see our “Broadcaster’s Guide to Music Licensing” at http://accounting.musicreports.com/blog.php/ for more information.  And be sure to read “Don’t Double Pay for Performance Rights-Part 2: Digital TV and New Media Uses” in the next issue of Smart Licensing™.

Tags: Licensing, Performance, Television

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