background vocal versus background music?

Date: Thu, 10 Jul 2003 13:03:45 -0700
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A month old, but interesting http://www.filmmusicmag.com/article_84.shtml
Court Decides Against Composer Peter Myers in ASCAP Royalty Dispute;
Myers to Appeal
Jun 5, 2003, 5:56pm Email this article Printer friendly page
Myers' Attorney Charges Conflict of Interest and Special Treatment for
"Friends of ASCAP"
NEW YORK (Film Music Magazine) -- In a court victory for performing
rights society ASCAP, Federal Court Judge William Conner refused to
grant a motion by veteran composer and ASCAP member Peter Myers
("Diagnosis: Murder," "The Love Boat," "Dynasty", arrangements for
"American Idol") to overturn an arbitration decision regarding ASCAP's
refusal to grant "background vocal" classification to Myers' music
despite the performance of a live vocalist as part of the music recording.
Among the central issues Myers raised as part of his complaint against
ASCAP was the role of ASCAP's law firm as both a representative of ASCAP
and as advisor and secretary to ASCAP's elected Board of Review, which
decided against Myers in his original claim.
A spokesperson for ASCAP's law firm, White & Case in New York, said
Wednesday that the firm believed the judge's ruling was correct, and
could not comment further since it was a client matter. An ASCAP
spokesperson said that the result reached by the Court speaks for itself.
In a statement, Myers' attorney Alan Cyrlin of the Los Angeles based law
firm Wasserman, Comden, Casselman, & Pearson said, "Judge Conner's
ruling hurts hundreds of thousands of composers and songwriters who are
members of ASCAP and other performing rights organizations. The ruling
essentially holds that it is OK for ASCAP to use its own lawyers to act
as an advisor and lawyer to what is supposed to be an impartial panel of
judges. This process denied Peter his right to a fair and impartial
hearing, which Peter is entitled to under the Consent Decrees and
ASCAP's own rules. The
District Court all but ignored the fact that ASCAP's lawyers acted as an
attorney and advisor to ASCAP's internal tribunal. I doubt that ASCAP
would have let Peter's attorneys act as the Board of Review's advisor
during Peter's Protest."
At the center of Myers' case is the claim that his music, which utilized
a live vocalist singing as part of the recording process, should be
classified by ASCAP as "background vocal." ASCAP has argued that the
correct classification is "background instrumental" despite the presence
in the music of singing by a live vocalist.
The significance of the background vocal vs. background instrumental
classification relates to a past decision by ASCAP which designated that
all music indicated as "background vocal" on cue sheets be automatically
paid the top royalty rate of "feature performance," a classification
usually reserved for visual performances of music where the performers
are seen on-screen, performing the music. While music classified as
background vocal was increased to the higher rate, background
instrumental music was not. This decision resulted in a 600% increase in
royalty rates for songwriters for a one minute usage of background vocal
music, compared to what they would have been paid at the background
rate. A representative of ASCAP competitor BMI had previously stated
that BMI had no choice but to match ASCAP's payment policy in this area
in order to avoid losing songwriter members to ASCAP.
ASCAP's rules for paying royalties have been described as among the most
punitive towards instrumental music in the world, paying a one minute
piece of instrumental music indicated as "background instrumental"
within a film or television program only 16% of what one-minute of song
indicated as "background vocal" within a film or television program is
paid. In many other major performing rights societies internationally,
including those in Germany, Spain, France and England, a minute of song
and a minute of instrumental score music within a film or television
program are paid at exactly the same rate with no penalties for
instrumental music.
In those countries where royalty rate differences for music within a
film or television program exist, such as Australia and Canada, the
policies of the performing rights organizations in those countries state
that the opportunity for higher royalty rates is available to both song
and instrumental music, and is based not on the presence of vocals, but
on whether or not the actors in the production actually hear the music
as part of their performance.
Myers' attorney Alan Cyrlin says Myers would have been paid more if he
was a "famous" member of ASCAP, stating that "We do not believe that
ASCAP would have treated Peter this way if he was a famous songwriter.
We contend -- and we will point out to the Court of Appeals -- that
ASCAP characterizes the music of extremely famous writers who many ASCAP
members refer to as 'ASCAP's friends' more favorably than other members
for exactly the same type of musical works and usages. This results in
the most famous and wealthiest members receiving a larger piece of the
ASCAP pie. Peter tried to prove this in the Protest -- but ASCAP refused
to open its books and produce the documents. And, the ASCAP Board of
Review, advised by ASCAP's lawyer, let ASCAP get away with it."
Cyrlin said that Myers will appeal the decision, stating "Because Judge
Conner's decision hurts many writers and other creative artists, Peter
has decided to seek review from a higher court. In addition to filing
his brief with the Court of Appeals, we will solicit Amicus Briefs from
organizations and guilds who protect the rights of artists. We look
forward to the appellate process and are confident that the Court of
Appeals will overturn Judge Conner's decision."
Film Music Magazine will present updates on Myers vs. ASCAP as events
develop.
© Copyright 2003 Film Music Media Group, Inc.