By Mark Holden
Composers royalty rights, PRO ASCAP BMI SESAC
“The first thing that composers should do is get organized. And it’s a terribly important time right now because of all the legislation that is imminent and necessary because of Internet delivery. … Composers should be rallying and asking to be paid for all sales of audiovisual product no matter where they’re sold. … And the legislators are the key.” – Neville L. Johnson
|“The first thing that composers should do is get organized. And it’s a terribly important time right now because of all the legislation that is imminent and necessary because of Internet delivery.”
“Composers should be rallying and asking to be paid for all sales of audiovisual product no matter where they’re sold.”
“And the legislators are the key.”
A Conversation with Attorney Neville Johnson
By Mark Holden
Entertainment attorney Neville Johnson isn’t afraid of a good fight. Currently. he’s spearheading a class action lawsuit against the Writers Guild of American alleging that millions of dollars of foreign payments were not paid to members. Johnson speaks about the music business from experience – as a performer he’s known as Trevor McShane and writes and plays what he describes as “Americana music.” But in the legal world he pulls no punches and has made a reputation as a highly skilled, shoot-from-the-hip attorney that knows the entertainment industry and gets results.
Film Music Magazine sat down with Neville Johnson and had a conversation about composers. business issues, the lack of industrial representation that composers face, and what might be done about it.
|Tell us about your law practice. What kind of cases attract your interest?We’ve been doing a certain amount of class action work, both in and out of the entertainment business. Of course, there has to be enough at state economically for use to be involved. Even if we can find the right kind of cases – those that make institutional changes occur – we like to do those. We also do general business in entertainment law and in settling disputes. Sometimes copyright infringement actions as well.
In your opinion, what are the most important legal issues facing composers?
For starters, the current systems of work registration and collections worldwide should weigh heavily in terms of composer concerns. I’m talking about the world’s collecting societies, the proper registration of works and the distribution of royalties.
Most composers operating under work-for-hire agreements leave registrations to the studios and production companies. Some will make sure there’s a cue sheet filled with ASCAP, BMI, and SESAC, buts that’s about it.
I’m afraid there’s not adequate record keeping internationally. I’m concerned about who is collecting revenue, how it’s being collected, and whether it’s being collected adequately. I’m referring to performance and mechanical income, all of it.
As you know, American performing rights organizations (PROs) have reciprocal agreements with collecting societies worldwide. Typically, a composer’s PRO deals on his or her behalf. Typically, a composer’s PRO deals on his or her behalf. There is no direct examination by composers of books kept overseas.
I’m concerned about the exchange of information and transparent dealing. Why shouldn’t a composer be allowed to make queries directly, especially as to proper registrations and the administration of those works abroad?
What additional concerns should be on the minds of composers?
PRO accountability to its composers. There’s also an issue as to what extent these entities are truly democratic. It appears to me that their governing boards are self-perpetuating.
If an institution is not exercising the democratic principles it advertises, how might change be affected?
Well, you have to fight it internally. But it doesn’t sound like there’s much leverage on the composer side.
Little, if any. Composers are the only work force in Hollywood without so much as an advocacy group, much less an actual guild or union. It’s no secret that people without representation lose their rights. And composers have been surrendering for decades.
In theory, composers might consider forming their own society, or go for direct licensing deals. Of course, that might backfire. There is a great benefit to having a unified performing rights society or two in terms of negotiation with licensees. The problem is, many perceive the societies are skewed towards the popular songwriters because they are controlled and chiefly populated by them. To the extent that the composers are in the minority, it’s an unfortunate fact of life.
Interestingly, there are no statistics available to support any assertion that film and television composers are in the minority of royalty-earning PRO members. Such information is forbidden. What we do know is that there is an 80% or 97% penalty levied on a minute of song performed on American television. That is a fact. Following through, voting powers are apportioned by earnings that are weighted by categories – not the prevalence of what classifications of music are dominant on broadcast television.
Yes, it appears to be a conflict between classes. Arguably, composers are discriminated against economically. Unfortunately, there’s no equivalent civil rights application in that the conflict is not racial or religious in nature.
Give our readers your assessment. If fundamental statistics about how music is used in television and radio go undisclosed, how can a class of people being kept in ignorance ever expect justice?
Has Film Music Magazine asked for such statistics?
Repeatedly. All such queries have been refused.
Has there been any response as to why?
That disclosure of such usage data “would create a competitive disadvantage” between American PROs. No one believes that answer for a minute, in that ASCAP, BMI,and SESAC know precisely what each other has on the air. For starters, they have shared databases. Further, most cue sheets submitted listing music contained in film and television programs and movies have works from both ASCAP and BMI repertories. The response is evasive and disingenuous.
Well, I say that the two most important criteria for a rights society are accountability and transparency to its members. If basic information is not forthcoming, it ought to be. If it’s not, there had better be a very good reason as to the nondisclosure.
Let’s move to the Alden & Rochelle case that set precedent affecting film composers worldwide. The result of that case prevented ASCAP from collecting music performance fees from music contained in films exhibited in American music theaters. Like the punitive usage weightings we touched on, this decision flies in the face of standards and practices throughout the world.
Actually, it’s quite shocking and totally unfair. It’s a historical vestige of antitrust conduct on the part of ASCAP going back to the late 1940s.
Is there anything to be done about it?
Composers should be lobbying for a change in the ruling with the Justice Department and Congressional leadership, perhaps individually and outside the auspices of a performing rights society.
As we’ve observed, composers have no industrial representation to mount such a lobby.
That’s a fundamental problem with composers – they’re not organized on any level of the entertainment industry. You’ve got grips, camera operators, electricians, Teamsters, actors, writers, and directors all represented on an industrial level.
And no composers in sight. Even the songwriters can muster some meaningful advocacy from the SGA (Songwriters Guild of America).
I’m grateful that the Nashville Songwriters Association International [NSAI] is doing its best to lobby on behalf of songwriters. But that still leaves composers out in the cold.
What would you suggest?
The first thing that composers should do is get organized. And it’s a terribly important time right now because of all the legislation that is imminent and necessary because of Internet delivery. The web is a great boon to the promotion and delivery of music. And composers should have a voice in the monetization of these new delivery systems insofar as their music is affected. There’s a school of thought that says record companies are no longer necessary in the traditional sense because individuals can now enable distribution themselves. And there’s a lot of truth to that. Someone can go up on MySpace, get noticed immediately, generate some attention and begin to make some serious money. We haven’t really seen that breakthrough artist yet, but I’m fairly confident it’s going to be happening in the very near future.
How might this new model apply to film and television composers?
It’s always music that leads the way. Next is audiovisual content. The technology is getting to the point of supporting rapid distribution of sight and sound, which may become the dominant method that motion pictures and television are delivered in the future. That would be a good thing for everybody in the sense that it will make the distribution of programming that much easier. Slowly but surely, DVDs will become a thing of the past, just as VHS has seen its better days. There won’t be Blockbuster stores as we know them in the coming years.
And American composers, as a group, have been excluded from rights participation in most if not all of those work-for-hire productions. The screenwriters, the directors, the actors have all enjoyed a modicum of participation in the income streams from videocassette and DVD sales and rentals. The fact that only composers are excluded in the United States is wholly atypical of world standards and practices. And now we face the further exclusion of composer participation via digital downloads, because a Federal court has concluded there are no performance components in such transactions. Never mind that 25 million households are still watching the content, just as they would in a broadcast. What this means, potentially, is that a composer who could once make a good living from scoring series television along with the public performance royalties that followed may very well be excluded from ongoing participation in a digital world.
Composers will have to organize for change. The first thing is publicity. If one wants to make things better, then the first thing is to get the story out there. Composers should be on a network, a list-serve, where they’re at least talking to each other. Secondly, information must be promulgated to those who are in a position to make changes. That includes people on the legislative side. It also means communicating with policymakers wherever they may be, including the performing rights societies who are themselves legislators of a sort. But composers must step up to the plate. They must demand to be counted and make it clear that they want to participate on these boards – they must be vociferous. Composers need to have relationships with members of the traditional press to let them know what the particular issues are. The problem is, musicians are habitually and traditionally insular and tend not to engage in talks concerning business and law.
True. But more insular than actors or writers? I doubt it. Composers didn’t end up in such organizational disarray by accident. Many composers will tell you there are penalties for those who speak-up – who choose a path other than insularity. But that’s a subject for a book and criminal investigations by the U.S. Department of Justice. If you would, identify some additional issues facing composers.
Another big problem is that the deals are often so one-sided, in that there are buyouts of so-called mechanical rights in audiovisual product. I think this is totally inappropriate and not in accordance with world standards. Just the general notion of performance buyouts is likewise detestable. As a work achieves economic success, why shouldn’t the composer who contributes to it be accounted to? That’s in accordance with world standards. But that’s not the case in America.
And those factors, often motivated by fear, as to why most composers remain silent?
It’s because of the marketplace. Because of the way composers have allowed themselves to be manipulated. With no representation, it’s a buyer’s market.
So it is with most actors. But they can still muster industrial representation with the Screen Actors Guild (SGA).
But with composers, I understand there are situations where people are forced to give up their credits to other composers. That’s highly in appropriate. I understand the cartoon industry is rife with entities – persons who have nothing to do with the creation of the music getting a substantial share of the writer’s performance royalties.
Of course, if such a composer raises the issue, that person doesn’t work. That’s a problem for the wife and kids.
Right. So composers should be rallying and asking to be paid for all sales of audiovisual product no matter where they’re sold, and bringing this to the attention of law makers The greatest hope and salvation of score composers is going to come from the legislators NSAI has been successful in lobbying by going to Congress and having songwriters traipse the halls with banjos and guitars – by entertaining them. Composers would be likewise suited in utilizing that tactic
But again, we return to infrastructure, no composer organization to execute what you’re advocating. Especially when there are a handful of powerful songwriters and at least one PRO ready to squelch any composer making such noises A veteran ASCAP board member once told me that the songwriter’s worst nightmare would be a viable composer organization. I believe him, then as now.
There is obviously a gap between the ‘haves” and the ‘have-nots’ of composers – those who are earning six figures and more on film projects can shrug to the extent that they’re not collecting everything they’re due. Still, if composers want to affect change, some kind of organizational advocacy is necessary. And the legislators are the key.
|About Neville JohnsonNeville Johnson is a partner with Johnson & Johnson LLP (www.jjllplaw.com), in Beverly Hills, California, which specializes in business and entertainment litigation and consumer class actions. Mr. Johnson has tried over 23 jury cases to verdict, and was nominated for Trial Lawyer of the Year 2005 by the Consumer Attorney Association of Los Angeles, of which he is a board member. He is a member of the invitation only American Board of Trial Advocates. He was voted a Southern California “Superlawyer” (top 5%) by his peers for the years 2006 and 2007.
Johnson is a Phi Beta Kappa graduate of the University of California at Berkeley, where he was the music critic for The Daily Californian. He obtained his law degree from Southwestern University School of Law, graduating near the top of his class. Mr. Johnson has practiced as a music attorney since 1975, representing such clients as Yoko Ono Lennon and the Estate of John Lennon, the Academy of Country Music, Bug Music, Nancy Sinatra, and numerous independent labels, publishers, managers and artists. He has extensive litigation experience in music industry-related matters, including class actions on behalf of songwriters, publishers and recording artists. Mr. Johnson was council in the recently settled Ory v. Columbia House, federal class action against the record clubs for underpayment of mechanical royalties to publishers and writers. Mr. Johnson has spoken on music business issues at many law schools, universities and to music industry groups, including most recently at MIDEM.
Besides entertainment law and domestic and international copyright, Mr. Johnson is a nationally recognized expert in the law of privacy and defamation. Mr. Johnson helped establish the right of privacy for all Americans in Sanders v. American Broadcasting Companies, Inc. 20 Cal.4th 907 (1999), a unanimous decision by the California Supreme Court, Editor and Publisher magazine named him on of the top six plaintiff media attorneys in the United States; Privacy Torts, a treatise on privacy, contains a special dedication to him. For a law review article examining Mr. Johnson’s career in media law, see Richards and Calvert, “Suing the Media, Supporting the First Amendment: the Paradox of Neville Johnson and the Battle for Privacy,” 67 Albany Law Reviews 1097 (2004).
He is the author of a definitive law review article on California law applicable to personal managers and talent agencies, as well as The John Wooden Pyramid of Success, The Biography of the Greatest Coach in the History of Sports, and the Ultimate Guide to Life, Leadership, Friendship and Love (Second Edition, 2004), now in its third printing. Mr. Johnson is also the publisher of Cool Titles (www.cooltitles.com), an imprint which publishes fiction and nonfiction.
Finally, Mr. Johnson is a partner in the label East of Sideways (www.eastofsideways.com), and recently released his second album of original Americana compositions, “Dizzy,” under his nom de plume, Trevor McShane.