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ASCAP lose ringtone lawsuit
By CMU Editorial | Published on Monday 19 October 2009
A US court has ruled against ASCAP in what, it has to be said, was one of the American publishing collecting society’s more ambitious royalty claims: that every time a ringtone plays it counts as a ‘public performance’ of the song, so the phone network to which the phone is linked should pay a royalty.
No offence to ASCAP, but they are in danger of taking over from the Recording Industry Association of America as being the primary hate figure for American music fans. Certainly such legal claims do little to overcome the music industry’s reputation as being run by a bunch of delusional money-grabbing bastards.
As much previously reported, in the US the so called mechanical royalties and performance royalties due to music publishers are collected by different collecting societies, where in the UK all publishing royalties are collected by PRS For Music (albeit the mechanical ones via its MCPS division). This has caused confusion with digital services where, arguably, both a mechanical copy of the song is made and a performance takes place as part of a transfer. Providers of said services often do a deal with the collecting society representing one set of royalties, only to get a call from the collecting society representing the other set asking for cash.
Because a mechanical copy of a song is made when a ringtone is downloaded to a phone, agencies representing mechanical rights – so the Harry Fox Agency in the US – will be the primary licensing body for ringtone sellers. But, in their rather ambitious lawsuit, ASCAP claimed a performance royalty was also due, and sued phone firm AT&T accordingly.
But Federal Judge Denise Cote was not impressed by the claim. She ruled that a ringtone going off did not constitute a “public performance”, not least because it was impossible to tell whether the ringtone played long enough, or went off in a public place, or in the earshot of enough people to constitute “public performance”. So, no money for ASCAP then.
AT&T welcomed the ruling, obviously. A spokesman told Digital Music News: “We’re gratified that the court agreed that neither AT&T nor its customers are liable for performance rights infringement when a ringtone is sold or played”.
ASCAP were less impressed, telling the website: “While ASCAP is disappointed with the ringtones summary judgment issued yesterday by the US District Court, this … is about much more than just ringtones. We have always pursued fair payment for individual music creators whose creative works are used to build the businesses of others and that effort will certainly continue”.
Some commentators wonder whether aspects of Cote’s ruling could spoil ASCAP’s chances of convincing the courts services like iTunes should pay a performance royalty for providing thirty second preview clips on their iTunes Store in the US. As previously reported, the collecting society is currently pursuing a legal action to that effect.
