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Top-Rail News Flash! 31 January 2020 Discovery Channel Direct License Scheme

Howdy Top-Rail Bunch! Happy New Year!

   I trust that your New Year celebration was a safe and fun-filled one. 2019 was a very interesting and exciting year, to be sure and I am anxious to see what 2020 brings. But before I get down to business, I have two announcements to make, which I will provide a little more detail at the end of this newsletter.

   On Wednesday 8 January 2020, the Sheriff’s Department officially evicted the tenants who bought my friend’s business back in October 2018. And on a sadder note, a lifelong friend from the 1950s, Leo Maimone, passed away on 9 January 2020.

   In the 22 December 2019 Issue of the Top-Rail News Flash I made this statement, “When something doesn't sound right, I do my own research. And what I discovered was much more sinister and actually threatens the livelihood of future background music composers.”

   This was my initial response to an article I read in the 15 December 2019 Issue of Tradition magazine regarding the Discovery Channel’s new direct licensing deal with background music composers, and a suggestion that this was an attempt to save them from ASCAP and BMI. My research revealed that article to be very misleading because it threatened the livihood of current and future background music composers. Here are 7 excerpts [cut & pasted] from that 15 December 2019 Tradition article, so as not to misquote anything. I will also refer to Tradition Magazine’s author as Editor because this is not designed to be a personal attack or affront to my music friend.


1. TRADITION 15 December 2019:

“The Discovery Channel has announced it is seeking 'direct source licenses' with composers of background music used on the many and various programs that Discovery creates. This action would effectively eliminate the need for ASCAP, BMI, and SESAC, music licensing agencies who collect the money on the composers behalf, and of course keep a nice tidy sum for doing so, but never give a penny to the composers they represent if that same composer performs his original music 'live.'…”


RESPONSE: [1]Direct licensing with background music composers has been a routine part of the industry for decades. This new deal does not eliminate the need for ASCAP, BMI, and SESAC, because they are not typically involved in these types of negotiations. [2]The collection “sums” ASCAP and BMI receive are regulated and not arbitrary. [3]ASCAP OnStage is the platform that pays its writer members when they perform their own songs live at a licensed venue. [4]BMI Live is the platform that pays its writer members when they perform their own songs live at a licensed venue. Both platforms have similar submission fields and include information on performance dates covered for each quarter of each year, and a deadline for submitting your songs for payment within each quarter. [5]SESAC is a private, for-profit organization that has an invitation-only membership and is somewhat secretive about their financial operations. I could not find any information about live performance payments and therefore mention of them in this Issue will be limited.


2. TRADITION 15 December 2019: “This is even more pronounced in the situations where a composer performs his original material live in a 'small' venue. The venue, for instance, pays an enormous fee to these same licensing agencies, who collect the fees on behalf of their composers, but pays not one red single penny back to the composers they are collecting for…”


RESPONSE: [1]The venue pays a license fee based on a number of factors, which includes square footage, audience capacity, admission charges, concession stands, and whether it’s a bar, restaurant, coffee shop, or music venue, such as Tradition editor’s Oak Tree Opry. [2]ASCAP and BMI do pay their registered writer members. [3]ASCAP and BMI have been under a court ordered consent decree by the U.S Justice Department Antitrust Division since 1941, which regulates how they operate.


3. TRADITION 15 December 2019: “…WOW you say! Yes indeed. That's why the Discovery Channel wants to deal directly with the composers they want to hire…”


RESPONSE: [1]False! The Discovery Channel wants to execute a one-time buyout of the compositions and eliminate the ‘back end’ royalties when their shows are re-broadcast, become series, placed on DVDs, etc. [2]It’s from these additional airings and productions that composers receive performance royalties which are collected by ASCAP and BMI and distributed to their composer members! This is a major part of their living wages!


4. TRADITION 15 December 2019: “…A little more 'explanation' from my point of view. As I enter my 70th year as an entertainer, musician, AND composer I'd like to share my personal experience with one licensing agency in particular ASCAP. I perform my own compositions at a venue called the Oak Tree, which is OWNED by a 501(c)3 non-profit corporation who is dedicated to righting the wrongs of licensing agencies, ASCAP in particular, who collects the money but doesn't pay a penny back to the composer, even if he's performing on his own stage. This means a composer has to pay to play his own songs on his own property without any recompense of any kind.


RESPONSE: [1]Music Venues in the United States are legally required and responsible for obtaining licenses from ASCAP, BMI, and SESAC to use the music in their catalogs. This has nothing to do with whether or not Editor is performing his/her own songs on his/her own property, or it’s a non-profit corporation, etc. [2]The Oak Tree Opry hosts shows that feature numerous artists and is therefore required to obtain the appropriate licenses which will allow all artists appearing on its stage to sing any of the songs in the PROs catalogs. [3]Editor is not paying to play his own songs on his own property! See bracket 2. [4]And since Editor is not a registered songwriter member of ASCAP or BMI, he will not be paid for live performances of his own songs!


5. TRADTITION: “…What's more, many of the original songs I perform on my own stage is licensed through a BMI (Broadcast Music Inc.) Music Publishing Company, Royal Flair Music, which I also own. It is this same publishing company that 'sponsors' the special 'original music' programs we do. When I complain bitterly that I don't want to pay ASCAP for performing my own BMI originals on my own stage, sponsored by a BMI music publisher, because they refuse to 'pay' their composers the money they collect, they tell me that it is far to expensive for them to determine what songs are being played in 'any' venue, therefore they refuse to pay their songwriters anything.


RESPONSE: [1]Again, Editor is not paying ASCAP to perform his own songs. [2]The Oak Tree Opry should also have a blanket license from BMI and SESAC as well because artists perform a wide variety of PRO songs on its stage. [3]Yes, back then it was too expensive to determine what songs were being played in any venue at any given time, and that money was diverted to cover other PRO projects. [4]That is why ASCAP OnStage and BMI Live! were eventually created! I have many BMI royalty statements that prove I’ve been paid for performing my songs live!


6. TRADITION 15 December 2019: “…You may know that I spent about 20 of my 70 years performing music in Europe. It didn't matter if I was in England, France, or Austria, or wherever, I ALWAYS received payment for performance of my own original material. Not much sometimes, but if that can be done in Europe, WHY then can it not be done in America? That's what makes the Discovery Channel's decision to bypass music publishing licensing agencies and contract directly with the composers so interesting. What Discovery is doing is hiring the very best in the business and let those that aren't so good seek employment elsewhere…”


RESPONSE: [1]The European music PROs have a much more stringent and mandatory reporting and payout system that does not operate like the U.S. PROs. [2]I’ve never encountered a scenario whereby the venue directly paid a writer specifically for performing his/her songs. I suspect that Editor was being paid for his booked performances, which included his own songs. I could be wrong because Europe does things differently. But I’ve so far found no evidence to support European direct payments to songwriters specifically for their own songs. [3]If anyone can share direct light on this, please do! It would be an interesting topic for a future Issue. [4]However, the fact is that the Discovery Channel was trying to CHEAT its professional composers out of their main revenue source and they revolted! See news excerpts and a recent update further down.


7. TRADITION: “…In the early days of recorded music teaming up with radio broadcasting, ASCAP was the ONLY licensing agency available. Without ASCAP approval, you could not get your recording played on radio. This is the interesting part. ASCAP refused to license what they called 'mountain' or 'hillbilly' music. In their own 'public' words, they claimed this particular musical genre was unfit for humans to listen to. My God, does this discrimination even 'bother' anyone that has to deal with ASCAP. Do you know what the radio stations did? They teamed up and 'BANNED' ASCAP music from being played on their radio stations. Did that change the situation? Gulp, it sure did, ASCAP backed right down.


RESPONSE: [1]Yes, in the beginning ASCAP was the only licensing agency, and if the writer/publishers were not ASCAP members, DJs wouldn’t play their music. Yes, ASCAP discriminated against ‘hillbilly’ music” and called it ‘unfit for humans to listen to’ along with other music genres! [2]No, ASCAP did not back down. Between 1931 and 1939 ASCAP increased their radio rates by 448%! When ASCAP tried to double the rates in 1940, the broadcasters revolted and created Broadcast Music, Inc. better known as BMI.


DISCOVERY CHANNEL’S TRUE DIRECT LICENSING MOTIVE:

   Following 15 December 2019 Tradition Magazine article I researched and read a number of articles on this subject, with all of them reaching the same conclusion. Including a couple written by John Burlingame, who is briefly referenced by Editor. Please click the provided links to get the details.


   TRADITION 15 December 2019: “…John Burlingame who prepared it for Variety Magazine (12-19-19) says "that the Discovery Network … is instituting a new pay policy that virtually assures no composer currently working on their programs will do so after December 31, 2019."

   Apparently Editor didn’t read the whole article, or any others, because his quote certainly does not seem to support the notion that Discovery Channel is trying to protect its composers from ASCAP or BMI.



QUOTES & LINKS TO ARTICLES ABOUT DISCOVERY CHANNEL’S SCHEME:

1. “Composers Rally Against Discovery’s Reported Plan to Nix Music Royalty Payments. Discovery Networks plans to restructure music deals for shows like "Deadliest Catch" in a move that would decimate composers' earnings.” 18 December 2019 by Chris Landahl: “Beginning December 31, [2019] Discovery is moving to direct source licenses, which would mean composers would no longer collect US royalties for all future and past work — they would only collect upfront fees and foreign royalties. Dec 18, 2019”

“…As of December 31st, Discovery will no longer commission original music that allows writers to collect their U.S. performance royalties through the PRO of their choice…”


2. “Discovery Networks Corners Composers in Music Royalties Battle.

Music makers for shows like "Deadliest Catch" decry the new contract provisions as “evil."

12 December 2019 2:54PM PT by Jon Burlingame

“…Discovery has informed many of its top composers that, beginning in 2020, they must give up all performance royalties paid for U.S. airings, and that they must sign away their ability to collect royalties on all past shows on its networks. Music makers surmise that the policy will result in an 80% to 90% drop in their income from these shows. It’s the last straw for many composers who say they will refuse to continue to score such series as “Gold Rush,” “Deadliest Catch” (pictured) and “Alaskan Bush People,” calling the new contract provisions “unprofessional,” “bullying,” “a corporate money grab” and “evil…”

“…Variety spoke with more than a half-dozen composers who have been informed of the proposal, which is designed to circumvent the 100-year-old system whereby composers are compensated for use of their music in broadcast media. Those royalties are collected and distributed by performance-rights societies ASCAP, BMI and SESAC…”

“…Some estimates suggest that [Discovery Channel] avoiding ASCAP, BMI and SESAC royalty payments might save them $25 million or so – less than 1 per cent of Discovery’s third-quarter 2019 revenue of nearly $2.68 billion. Several composers and music attorneys tell Variety that this initiative “sets a dangerous precedent.” They worry that inexperienced composers who agree to take this deal will erode long-held industry practices…” “…Discovery is requesting “direct source licenses” which will enable them to eliminate royalty payments…”


3. Composers revolted against Discovery Channel’s new Direct Licensing Policy and WON! VICTORY FOR COMPOSERS AS DISCOVERY NETWORKS U-TURNS ON RIGHTS BUYOUT PLAN

Posted 27 January 2020 by Murry Stassen

“Media company Discovery Networks has scrapped controversial plans to stop paying performance royalties to composers for shows aired in the US across its channels including Discovery Channel and Animal Planet…”

“…As first reported by Variety in December, Discovery Networks was planning to start asking composers to agree to “direct source licenses” for their music, (i.e. having their rights bought outright), or risk having their work removed from programming. This news drew fierce criticism from both creators and PROs, with ASCAP stating in mid December that it was “very alarmed by the reports of Discovery Networks’ new policy…”

“…The Production Music Association (PMA), which counts over 670 music publisher and composer members, issued a statement on Thursday (January 24) announcing a U-turn from Discovery.

The PMA personally thanked Discovery’s Vice President of Global Music, Shawn White for the network’s reversed decision…”

“…Some very good news,” said the PMA’s statement. “We have been informed today by Discovery Networks that in regard to performance rights, Discovery has decided that their US channels will remain operating as is under the traditional PRO performing rights model…”


ASCAP and BMI LIVE PERFORMANCE PAYOUTS: 

Since I’ve already addressed Tradition Editor’s erroneous claim that ASCAP and BMI do not pay their songwriter members for live performances of their own works, I’m going to just dig in. Editor is not a registered BMI songwriter member! I have explained this to Editor nearly a half dozen times since 2011! His publishing company, Royal Flair Music, is a registered BMI Publisher member and as such is required to list all of the songs and their writers in its publishing catalog. After a fee, processing, and approval, the publisher and its songs receive separate CAE/IPI numbers. If the listed songwriters are registered BMI songwriter members a CAE/IPI number appears with their names. There is no CAE/IPI number attached to Editor’s name!


   Editor must register in the BMI songwriter membership category and enter the relevant information. After processing and approval [no fee] he will receive a CAE/IPI number. His songs will retain the CAE/IPI numbers originally assigned to them through Royal Flair. Then, and only then, will Editor be able to submit his performances to the BMI Live platform and get paid. http://www.bmi.com/join

   I’ve tried to make this as objective and impersonal as possible because Editor is also a music friend. However, it’s time for Editor to stop spreading these ASCAP and BMI falsehoods and follow the proper songwriter registration procedures so that he is a registered BMI songwriter member and can finally benefit from the BMI Live program that pays royalties to me and thousands of other BMI songwriters when we perform our songs on stages across the country!


Local News: 

I still haven’t received the paid for “Glitter” CD from local artist Heather Mae, so I’ve written her off as a scam artist! My good friend Bill Gibson aka “Batman, complete with a Bat-Cave, Bat Mobile, and Batman costume, has picked up a new gig at King’s Craft in Rockville, Maryland. Wishing him luck and hoping I can out to see him when my heavy project load slims down.

   My good friends Rocky & Mary Anne sent me a yodeling pickle for Christmas 2019! Pretty cool! Early in my music career I contemplated creating a yodeling Mike Johnson doll! Ha!

   Our music publisher has plenty of songs available for covering, and our Record labels have plenty of recorded tracks available for leasing. You can check them out on our websites.

   I started working on this Issue during the first week in January 2020 and then ‘Murphy’ decided to throw a few monkey wrenches into the works. Not the least of which was another stonewalling letter from the Department of Veterans Affairs requesting information that I had already sent them on my ship’s movements during its Vietnam tours. This is for the Agent Orange Blue Water Navy benefits signed into law in 2019! Fortunately, before I send out anything, I make copies of the completed forms and attachments, and send the originals via certified mail.

   Health issues compelled my good friend Aharon, who owned and operated a dry cleaner-shoe repair business for 35 years to sell his business in October 2018. Unfortunately the new owner defaulted on the terms in the contract; two payments a year for five years. After much wrangling and lengthy court proceedings the judge finally instructed the Sheriff’s department to evict the buyer on 8 January 2020. We spent a hectic first week trying to locate missing items. I met Aharon around 1993 or ’94 while looking for a cobbler to repair my boots. My old cobbler of 10-plus years had retired. Over the years we became friends and in exchange for me helping him he would sponsor some of my music printing ventures with ink and paper supplies. The first week following the eviction was rather hectic as we tried to locate missing items, as well as inform customers they had 30 business days to retrieve their items. I called all the customers who had phone numbers on their tickets. Some numbers were out of service, others blocked calls, and other required a pin?

   On 9 January 2020, the day after the eviction, I go home to find a voice message that my lifelong friend, Leo had died earlier that day. We met in the Boy Scouts back around 1958. He had been recruited by our Scoutmaster to take over when he retired. We’ve kept in frequent contact throughout the years and in 1993 I moved into the same condo building where and his wife lived. During the 1970s Leo became a wedding photographer while I became a police officer and did freelance photography on the side. I avoided weddings! He also liked to write poetry, and I would go through them periodically and eventually found a few that I liked well enough to convert into songs. I rewrote some of the lyrics and composed the music for “Pigtails and Bubblegum” and Liquid Hell.”

   “Pigtails” was recorded released in June 1987 on my 2nd Cassette album, “Did You Hug Your Mother Today?” #C068701. “Liquid Hell” was recorded and released in November 2014 on James Adelsberger’s CD album “Old Time Country Songs Are They Really Dead and Gone?” #RCD49-15112014-1. The album also received a 2015 Rural Roots Music Commission “Pure Country” CD of the Year award. “Liquid Hell” was released as an Instrumental in November 2015 on James Adelsberger’s Instrumental CD album “Country Sounds #YCD1-26112015, which features some fantastic fiddling by James’ friend, Michael Romans. And it was released again in June 2017 on my CD album “Covering James Adelsberger” #RCD54-13062017-3.

Leo P. Maimone * 4 November 1940 - 9 January 2020 * Rest In Peace!


   Well, this concludes this Issue. I’d like to wish all of you an upcoming Happy Valentine’s Day, as well. Our YouTube Channel now has 1065 videos. Again, no click bait titles, no solicitations, no blogs or vlogs, or whatever they call them! We don’t send junk mail.

Adios and Vaya con Dios!

Mike Johnson & Joe Arnold

You and Me Records http://youandmerecords.webs.com

The Top-Rail News Flash is an online version of the former Top-Rail Independent Country Music Magazine published by Roughshod Records from 1995 to 2004. If you no longer wish to receive our News Flash please inform us and we’ll drop you like a hot branding iron!

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