ASCAP -v- BMI
The Big Difference
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performance rights are a writer's and publisher's
most important source of continuing royalty income

The basic differences in the structures of ASCAP and BMI
  are illustrated in an opinion and order  (Civil Action No. 41-1395 (pdf))  issued by
the United States District Court / Southern District of New York - Judge William C. Connor presiding . (April 30, 2008):

"ASCAP has a contractual duty to represent the interests of its members - composers, lyricists, and publishers - in its license negotiations with third parties."  (Page 16 Section A paragraph 53.)

"BMI's agreements with its writers and publishers contain no contractual obligation for BMI to represent the interests of writers and publishers in BMI's license negotiations with third parties. Moreover, the BMI Affiliate Agreement expressly disclaims any fiduciary duty to its contracting writer and publisher affiliates. "  ( Page 17 Section B paragraph 56.)


A POINT BY POINT COMPARISON OF ASCAP AND BMI*

 
ASCAP
BMI
FULL NAME
American Society of Composers, Authors and Publishers Broadcast Music, Incorporated
WHAT IT IS
A membership association comprised of songwriters, composers, lyricists and music publishers. A corporation with which writers and publishers are affiliated.
WHAT IT
DOES
Under U.S. Copyright Law, those who publicly want to perform copyrighted music (radio, TV, cable, bars, clubs, restaurants, shopping malls, concert halls, airlines, orchestras, websites, theme parks, etc.) must have the permission of the copyright owner. ASCAP licenses these users of music, collects the fees and pays its writer and publisher members their performance royalties. Fundamentally performs the same licensing, collection and payment functions as ASCAP.
OWNERS Writer and publisher members Radio and television broadcasters. (The very organizations ASCAP and BMI license!)
 
REVENUE
ASCAP reported income of $995 million 2009 and  payments of $863 million to to be members. ASCAP's operating ratio is among the lowest in the world. BMI reported income of $905 million 2009 and payments of $788 million to affiliates.
YEAR FOUNDED 1914 by writers and music publishers. 1939 by the broadcasting industry.
LICENSE FEES
DETERMINED BY
Negotiation with music users. If any licensee and ASCAP cannot come to an agreement, a federal court is available to determine a reasonable fee for that customer's ASCAP license. Negotiation with music users. Recent 1993 Consent Decree change allows court determination of reasonable license fees and interim license fees if negotiated agreement cannot be reached.
BOARD OF
DIRECTORS
12 writers and 12 publishers, elected every two years by the writer and publisher membership. Current President and Chairman of the Board is Oscar, Grammy and Golden Globe winning, Songwriter Hall of Fame songwriter, Paul Williams. Past presidents include:  Academy and Grammy Award winning lyricist Marilyn Bergman, Pulitzer Prize-winning composer Morton Gould and Academy and Grammy Award winning, Songwriter Hall of Fame lyricist Hal David. Broadcast industry executives chosen by broadcaster stockholders plus one BMI employee
WRITER AND
PUBLISHER
CONTRACTS
Writers and publishers sign identical contracts and may resign at the end of any year of the contract on three months advance written notice The standard writer contract is for two years and the standard publisher contract is for five years. Some writers and publishers negotiate shorter-term or co-terminous deals.

The two- and five-year contracts continue to renew for additional two- and five-year periods if the termination date is missed. Termination notice must be by registered or certified mail within a specific window (for example, no sooner than six months and no later than 60 or 90 days prior to the end of the contract).

WHO CAN JOIN Songwriters, composers, lyricists and music publishers, since 1914. Open only to music publishers from 1939 to 1950; writers able to affiliate commencing 1950.
WRITER AND
PUBLISHER
ROYALTY
PAYMENTS
Four domestic and four incoming foreign distributions per year. Moneys from all U.S. licensed areas are distributed to writers and publishers distributed quarterly.

50% to writers and 50% to publishers.

Clearly defined, objective and fair payment system.

Guided by a "follow the dollar" principle in the design of its payment system. In other words, the money collected from a particular medium (TV, radio, etc.) is distributed on the basis of performances in that medium.

Performances can be feature performances (visual vocal on TV, a song played on the radio, etc.), underscore (background music on a movie of the week or a weekly series), a theme song to a series, an advertising jingle, a promo or a logo. In radio, almost all performances are feature performances. 

On television, payments are based on when a performance occurs (afternoon, evening, etc.), where a performance occurs (network, cable, local television, etc.), and how a composition is used
(feature, underscore, theme song, jingle, etc.)

Based on all of these factors, a performance will generate a certain number of credits which in turn are multiplied by a dollar value to arrive at a writer or publisher payment.

Four distributions per year to writers and publishers. Each combines domestic and incoming foreign  Most U.S. moneys distributed quarterly.

50% to writers and 50% to publishers.

Payment schedule lists minimum amounts due for some types of performances.

Most writers' and publishers' royalties are in the form of one-time "voluntary" payments over and above the minimum payment-schedule rates. These "voluntary" payments may vary significantly from distribution to distribution and may also vary significantly between different types of performances. The size of each voluntary payment is determined each quarter by BMI management. These voluntary payments have ranged from 0% to more than 300% above the payment rate.

May move moneys around (e.g., radio royalties distributed on the basis of television performances and vice versa).
 

AREAS
LICENSED
AND SURVEYED
FOR PAYMENT
TO MEMBERS
Local commercial radio and television, the major television networks, non-commercial radio (including National Public Radio and college stations), non-commercial television, cable services, background and foreground music services, airlines, colleges and universities, "serious" music concerts, pop concerts, new media, Internet, certain ice shows and circuses; non-surveyed license fees distributed on the basis of feature performances on radio and all uses on television (background music, theme songs; etc.).

ASCAP uses a three-pronged approach to surveys for highest levels of performance data accuracy. Surveys use a combination of the most advanced digital tracking technologies, data provided by licensees, and an in-house staff of music experts.

In radio, ASCAP conducts separate surveys of country, Latin, jazz, urban contemporary, religious, classical, ethnic, and pop music stations so that the total moneys collected from those genre-specific stations are paid to the writers of works with performances on those stations.

Specific distribution formulas applicable to all surveyed areas and for all types of performances.

License same general areas as ASCAP

No specific payment formula is set forth in the BMI payment schedule for any licensed area other than network television, local TV and radio

LIVE
PERFORMANCE
ROYALTIES
Royalties are paid for all performances by headliners and opening acts in the 200  top-grossing U.S. concert tours, as well as selected other major live performance venues. Live performance payments commenced in 1993. Commenced paying on live concert performances in 1996.
COLLEGE
RADIO
Has surveyed and paid on college radio performances since 1979. Has surveyed and paid on college radio performances since 1989.
NEW  MEDIA
The first American performing rights organization paying its composer, writer and publisher members for music performances on the Internet beginning in June 1997.  ASCAP has developed many technological innovations that have set international standards for performance identification, such as MediaGuide, the most comprehensive and accurate performance tracking system using advanced "fingerprinting" technology. The ASCAP Network is another ASCAP new media first. The ASCAP Network features ASCAP Radio, Podcasts, Audio Portraits, ASCAP Video, and Interactive Member Profiles all dedicated to the works of ASCAP members exclusively.
The New Media & Strategic Development team spearheads analysis, planning and strategic development for BMI in digital media marketplace as well as managing the company's digital interests in the U.S. and around the world. Computerization has facilitated the collection of performance data, distribution of royalty payments, management of licensing fees and automation of accounting functions
SPECIAL
DISTRIBUTIONS
Where substantial moneys are received in a current year for prior periods, ASCAP has included those moneys in special distributions. These are designed to direct the royalties received to those members who had performances in the years in question. Members of foreign societies participate in these distributions. Special distributions have been made from moneys received from the ABC, CBS and NBC television networks, local TV stations, MTV and HBO, among others. Specific explanations are forwarded to all members as to how their shares of the overall distribution were determined. When retroactive moneys have been received by BMI, they generally have not been paid out in the form of special distributions to writers and publishers who had performances during the periods for which the moneys were due. Where special distributions have been made, little information has been provided as to how each writer's and publisher's royalties were determined.
FOREIGN
PERFORMANCES
Through agreements with foreign societies in the major countries of the world, ASCAP receives royalties for the performances of works written by ASCAP members which are performed in foreign countries. ASCAP also collects for foreign society writers and publishers for performances of their works in the U.S. and forwards those moneys to foreign societies for distribution to their members. (See: The ASCAP International Advantage) Has agreements with foreign societies for the payment to BMI of royalties due affiliates for their performances in foreign countries. Does not publish foreign financial data. Forwards U.S. money to foreign societies for distribution for U.S. performances.
RELATIONS WITH
FOREIGN
SOCIETIES
Agreements with practically all foreign societies provide that ASCAP licenses their repertories except for works specifically excluded. In most countries of the world, works go into BMI repertory only on specific request
WRITER AND 
PUBLISHER
INVOLVEMENT
Writers and publishers elect the Society's Board of Directors and a Board of Review (.pdf). Writers and publishers sit on advisory committees which meet periodically in New York, Los Angeles, Nashville and Miami. Open membership meetings are held in New York and Los Angeles. Writers and publishers have no say in the running of BMI. BMI holds no general meetings for its affiliates.
TREATMENT
OF WRITERS
AND
PUBLISHERS
All ASCAP writer and publisher members are treated alike, from the newest member to the most established member. Members are paid based on performances, not who they are. All similar performances are similarly credited. Members who have a complaint about the Society's distributions to them or the application of the Society's rules may seek relief from the Board of Review. (See: The ASCAP Advantage.) No obligation to treat all writer or publisher affiliates alike. Affiliates aggrieved by rules may seek arbitration, with loser liable for both parties' legal fees.


WEBSITES ascap.com
bmi.com

<>THE ASCAP ADVANTAGE:  CAREER DEVELOPMENT

SHOWCASES & WORKSHOPS Extensive series of new band and writer showcases,  educational seminars and workshops  as well as many other career development opportunities throughout the U.S. and foreign counties.
THE ASCAP
I CREATE MUSIC
EXPO
The ASCAP "I Create Music" EXPO is the only music creator conference of its kind. It covers all genres of music and includes panels, workshops, master classes, keynotes, One-on-One sessions, song critiquing, networking events, product displays, state-of-the-art technology demonstrations, performances, and more.  Open to all interested in the creation of music ... ASCAP membership is NOT a prerequisite.
MEMBER BENEFITS
All members receive a personalized ASCAP Member Card and are entitled to an exclusive package of valuable benefits, services and discounts including access to insurance coverage for health, dental, term life, musical instrument ar equipment, and studio and tour liability. Other benefits include discounts on CD manufacturing, promotional and tour merchandise, a member investment program, discounts on accessories from Guitar Center, airline and travel discounts and much more. Members also have access to a credit union offering a full range of financial services.   ASCAPLUS also offers an awards program (the only one of its kind in the world) that provides cash and recognition to: 1) Active writers in the early and mid stages of their careers, and 2) To established writers whose main activity is outside of broadcast media.
* THIS DOCUMENT IS NOT AN OFFICIAL PUBLICATION OF EITHER ASCAP or BMI.