ASCAP v. BMI: ASCAP For The Win
I hate to break it to you, but you are probably a copyright infringer. Yes, that’s right, an infringer of copyright. But don’t worry, you are not alone. Thanks to the boom of peer-to-peer file sharing networks such as Napster, Limewire, Turbowire, and the like, and to technological advances such as portable Bluetooth and cellular phone speakers loud enough to vivify a living room, copyright infringement is ubiquitous and seemingly inevitable.
As a matter of fact, I probably infringed at least a dozen copyrights on my way to work this morning. Out of all the exclusive rights in the bundle of sticks called copyright, the public performance right is perhaps the easiest to inadvertently infringe. And considering how loudly I listen to my favorite Jay-Z song (“Change Clothes”)in my car with the windows down, it would not be surprising if a representative of ASCAP or BMI pays me a visit sometime soon. Just kidding. But in all seriousness, this begs two legitimate questions: what are ASCAP and BMI, and what is the difference between the two?
ASCAP and BMI are two of three available Performing Rights Organizations (“PROs”) “responsible for collecting income on behalf of songwriters and music publishers when a song is publicly broadcast”, whether on the radio, in a restaurant, at a gym, or in my car with the windows down. They are essentially two different brands of the same tool for songwriters and publishers to protect and enforce their public performance rights in a musical work.
For example, in order for a restaurant owner to publicly broadcast a song without violating someone’s performance right and being hounded by a PRO, she must pay a fee to acquire a performance license from either ASCAP or BMI (depending on which PRO the copyright holder is a member of). Since PROs only protect registered works created by their members, a licensee (e.g., the owner of a gym) will often need to acquire licenses from both ASCAP and BMI so as to maximize and diversify the repertoire of music that the gym can broadcast.
But what about the flip-side of this performance coin? The copyright holders, almost always songwriters or publishers, are not similarly compelled to affiliate with both PROs. In fact, songwriters cannot be members of ASCAP and BMI simultaneously, so they are forced to make the difficult decision: ASCAP or BMI?
The fact that both PROs provide the same service does not make the decision any easier. The difference between the two is analogous to the difference between Apple’s iPhone and the Samsung Galaxy. Much of whether to join ASCAP or BMI is a matter of preference. But there are still some factors that might influence one’s preference.
Both PROs charge different initiation fees for new members. ASCAP charges a one-time $50 processing fee for songwriters and publishers. For songwriters, the benefit to joining BMI is that it is free. For publishers, however, BMI charges a one-time application fee of $150 for a publishing company owned by an individual, and $250 for a publishing company owned as a partnership, corporation, or limited liability company.
The royalties paid to artists by ASCAP and BMI are essentially the same. A detailed breakdown of the royalties can be found on the ASCAP and BMI websites, but it suffices to note that they are typically split in half between the songwriters and publishers.
ASCAP and BMI both provide membership benefits including options for life, medical, dental, and musical instrument insurance coverage. They also hold conventions at which members can mingle and network with other artists in the music industry.
4. Ownership and Interest
The biggest difference, and perhaps the weightiest factor in considering whether to become a member of ASCAP or BMI, pertains to the ownership of each organization. ASCAP is owned and run by its members (i.e. songwriters and publishers). BMI, on the other hand, is owned and run by radio and television broadcasters, the very people who PROs license. Is it just me, or is there something disconcerting about this?
Since ASCAP is run by its members, it’s not surprising that the writers and publishers have a say in ASCAP’s operations. For example, they elect the Board of Directors and the Board of Review, and they sit on advisory committees that meet periodically. BMI’s members have no say in its operations, and it’s not unreasonable to think that the television and radio broadcasters who own and operate BMI might structure it to favor their cause. There’s a clear conflict of interest when an organization dedicated to protecting songwriters’ performance rights is operated by the people against whom it is protecting them.
This is bolstered by the fact that ASCAP has a contractual duty to represent its members’ interests, whereas BMI’s agreements with its writers and publishers contain no such language indicative of a fiduciary duty. Actually, BMI’s agreements expressly disclaim any fiduciary duty to its members. This seems pretty fishy, considering that the sole purpose of PROs is to protect and compensate musicians. To be fair, BMI is probably just as effective and well-intentioned as ASCAP, but this is something worth keeping in mind, particularly for songwriters.
At the end of the day, ASCAP seems to be ideal for artists. As a songwriter who has not yet published his music, I must admit there is a good chance that I will be joining ASCAP when the time comes. While I have no doubt that BMI is a legitimate organization, there is something reassuring about the idea of joining a PRO that is run by my colleagues and I, as opposed to the people who want to license my music. Again, the choice is ultimately a matter of preference, but I hope that other artists find these considerations helpful when the time comes to decide between both of these reliable PROs.
 ASCAP is short for, “The American Society of Composers, Authors, and Publishers.”
 BMI is short for, “Broadcast Music, Inc.”
 The third PRO is SESAC. SESAC is an invitation-only organization and covers only 4% of the performance rights market in the U.S. Kamal Moo, What are ASCAP and BMI?, indablog, http://blog.indabamusic.com/2011/11/15037-what-are-ascap-and-bmi.
 Song Trust, http://blog.songtrust.com/songwriting-tips/pros-whats-the-difference. There is room for debate about whether one’s car constitutes a public place for purposes of a “public performance” within the meaning of the copyright Act.
 See Moo, supra note 4.
 See Id.
 Join ASCAP, ASCAP, http://www.ascap.com/join/.
 BMI, http://www.bmi.com/creators/#faqs.
 See http://home.earthlink.net/~deankay/TheBigDifference.html.
 See Id.
 See Id.