ASCAP, always looking for any possible way to increase payment, has been fighting to get wireless service providers to pay a public performance fee for the ringtones they offer for download. If Verizon allows you to download a ringtone that plays every time you get a call, then ASCAP feels they should be getting paid for the possibility of that call coming in in a public space and playing a song for an audience. Thankfully the courts have decided that this should not be the case, and ruled in favor of Verizon last week, verifying that ringtones do not in fact violate copyright in terms of qualifying as public performances. Verizon already pays 24 cents per ringtone it offers to subscribers. In addition to the violation ASCAP claimed was taking place when an incoming call played a song, it also argued that, though currently Verizon does not allow the ringtone to be played during download, it could potentially alter its technology to make such listening possible and become more directly involved. The court rejected this fanciful hypothetical, and also deemed ringtones legal as Verizon customers are using the songs for entertainment purposes only and not for an intended profit. This ruling seems significant to me in light of the discussions we have had in regards to what qualifies as public performance. This verdict clearly separates things like listening to the car radio with the windows down, singing in the shower, or other obviously harmless common practices from a restaurant playing music in order to enhance their atmosphere and increase profits. The whole case just makes ASCAP look absurd and incredibly greedy without real rationale, and in my opinion trivializes their other battles by establishing such a character for their organization.
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This is interesting actually: what is the cost of degrading ASCAPs public image? Is it worth the additional revenue from the ringtone community?
When I worked at BMI, my boss said to me one day. “We are really the bad guy out there. What we are in a sense selling is something that no one wants to buy (a public performace license). How do we make someone feel good about purchasing something they don’t want to buy?”
As such, BMI (and ASCAP for that matter) go to extrodinary lengths to market themselves as the ‘good guys.’ If you look on their websites, especially BMI, they are always posting pictures of BMI employees with singers/songwriters…in affect saying “we are here for you.”
I agree that this case made ASCAP look absurd, and then the best way to sell yourself is to create a positive self-image, such a act might be detrimental to your business. But don’t fret, I think that ASCAP and BMI are going to stick around for quite a while.
http://bmi.com/