Internet Radio For Songwriters

Two years ago, on April 1^st, 2015 I bought into and became a partner in The Cork and Stogie bar, A.K.A. The Cork, A.K.A the C&S, here in Key West. It's been a fun experience. Sometimes I have to pinch myself, I co-own a bar in Key West! Talk about a dream come true!

Every now and again, the Cork would have live music. As we understood, as long as it was original music, everything was fine regarding music licensing. Music wasn't often, maybe every few months, so we didn't think too much of it. When we played or, had others play, we all played our own music, so all was well.

Or, so we thought. We received a letter from BMI stating that we needed a license to continue to do so. I thought this was odd, so I contacted them via phone to explain that we were only playing original music.

I called them and spoke to them at length. As it turned out, what I was told, in signing with BMI, the author of any music registered with them, has authorized BMI to handle all of their royalties applicable for performance, radio, TV, internet radio, jukeboxes, and the like. The same holds true for ASCAP and SESAC, the other two firms who handle royalties.

They were very helpful actually. They explained that if I played any of my songs, The Cork and Stogie required a license in order to do so. It was irrelevant that I was an owner of C&S or the author of the song. If I was playing my song, lets, for example, say it was “Island Blue”, C&S required a license to do so.

In signing with BMI, I signed over the authorization for them to handle all royalty collections on my behalf. After all, as a songwriter, I write my own music. When signing with BMI, SESAC, or ASCAP, those royalties are assigned to them to handle. That's the job I've assigned as a songwriter when I signed with them. After all, like other songwriters, I'm too busy creating music to be dealing with royalties and payouts, that's why I, and all other songwriters, signed with BMI, ASCAP, or SESAC in the first place. After that, their rules apply. Also keep in mind that in playing my example song, “Island Blue”, a percentage of the royalty collected is theirs, so they have a vested interest.

Very important here! It also must be understood that BMI, ASCAP, and SESAC don't care if it's Chris Rehm, Dani Hoy, The Rolling Stones, Jimmy Buffett, or Kenny Chesney. If their songs are being played, no matter who it is, a license is required, plain and simple. There are no exceptions. In other words, they view me, Chis Rehm, in the exact same light as they view Mick Jagger. There's no partiality whatsoever.

Doing due diligence, I investigated and found that BMI, ASCAP, and SESAC won virtually every single law suite they got involved with because they had the violating establishments dead-to-rights. Said establishments were playing BMI, ASCAP, and SESAC music and not paying the annual licensing fees to do so. The court views this as a theft. The fines that I saw started at $60,000.00 and went to over $400,000.00.

Internet Radio

I was curious how internet radio fell into this? Would it be any different? If so, why? I do know one station, Tiki Island Radio, just shut down because they couldn't pay the annual licensing fee.

One station, Radio A1A, makes a point of saying they can't play, say Jimmy Buffett, or Kenny Chesney, or other “name” artists, but they can play music recorded by people like myself. When I originally sent them my music several years ago, I was of the thinking then that it was just like playing my original music at The Cork. As you just read, I learned otherwise later.

That seemed odd to me? Why would a bar not be able to play BMI registered music, across the board, but a radio station is able to play some artists, licensed by BMI, for example, while not being okay to play others? This didn't make sense.

Remember, in BMI's eyes, as far as the C&S went, it didn't matter if it was Jimmy Buffett, The Beatles, or myself. We're all licensed writers and that's how the rules standard are based. Why would it be different for internet radio? Also, bear in mind, any semi-serious songwriter out there making a recording will be affiliated with BMI, ASCAP, or SESAC.

As I am a BMI registered songwriter, I called BMI to enquire on all of this.

Here's the bottom line. If BMI, ASCAP, or SESAC is assigned to any writer:

Like a bar or restaurant, it will not matter if it's Kenny Chesney, Jimmy Buffett, Chris Rehm, Joe Schmoe, or Paul McCartney. All will fall under either BMI's, ASCAP's, or SESAC's umbrellas.

So, in other words, let's say you, as a songwriter, are playing a gig where a radio station is broadcasting it live. Should an employee, or management the internet radio station tell you that you can't play any covers because they don't have the licensing to do so, guess what? If you are a BMI, ASCAP, or SESAC writer, they can't allow you to play your songs either!

If they are not licensed, the only music they could possibly play without risk of getting in a legal bind would be by writers who are not with ASCAP, BMI, or SESAC. 

You, as a songwriter, have value. 

Never forget that, or cut yourself short! When you signed with BMI, ASCAP, or SESAC, you authorized them to protect your value and rights. They are doing exactly what you contracted them to do.

Again, in the eyes of BMI, SESAC, or ASCAP you are no different in any way from Paul McCartney, Jimmy Buffett, Frank Zappa, Jagger/Richards, or Kenny Chesney. If they can't play Jimmy Buffett, they likewise can't play you. I'm a BMI writer. According to BMI, in their eyes, there is no difference between myself and Jimmy Buffett as far as licensing goes. All BMI writers fall under the BMI umbrella. The exact same is true for those signed with ASCAP or SESAC.

I recall a particular internet station broadcasting a live event and when a performer started playing a popular song, the members of the station went running around, arms flailing in the air hollering “No covers! You can't play covers! Only originals!”

In short, this isn't the case.

If the station is not licensed, they can not play the artist on stage's music, much less, anyone else who's music is with BMI, ASCAP, or SESAC.

BMI, ASCAP, and SESAC are known as performing rights organizations or PROs. What they do is collect the royalties from radio stations, jukeboxes, live performances, and the like, for music played, then distribute them to songwriters, composers, and producers. This is one way how a songwriter generates income through their performance rights organization or PROs. This is one of the ways you, as a songwriter, make a living.

With that in mind, let's look at a specific situation and take semi-hypothetical stations, Radio Trop R, Tiki Radio, Beach Radio, and Radio A. Their real names changed slightly. So, Radio Trop R, Beach Radio, and Tiki Radio all pay their annual licensing fees. Their licensing is in order and their artists are compensated, so they are in good standing.

Radio A, however, doesn't pay the fees and are not licensed to play any artist signed with BMI, ASCAP, or SESAC, also known as a PRO. They present their case in saying they have found a loophole which allows them to broadcast without paying the annual licensing fees by calling it a promotion.

In other words, they claim to have found a way to sidestep the artists, so they are not paying the artists for the use of their material. They have a disclaimer on their submission page, which says that the writer foregoes any royalties the station would be ordinarily responsible for.

How can this be? Well, it's a situation of:  kind of, but not really.

Here's what BMI said about it:

“As a songwriter, you are allowed to direct license to any user of music including radio stations.  BMI affiliates retain the right to directly license their music to any user of music provided that they notify BMI of such direct license agreements per the terms of the BMI writer and/or publisher agreements.”

In other words, while a writer can authorize, in this case, a radio station, to play their music with no compensation via a direct license, the only way that can be done is if that arrangement goes between the author of the music and their PRO.

Why is this? Because the agreement is between the writer and their PRO. The radio station is a third party, not found anywhere on said contract agreement. The fact that they have a disclaimer on their website means absolutely nothing.

When asked:

“Can a station by-pass a license using a disclaimer on their submission page regarding submissions?”

BMI's reply was

“If the station plays copyrighted music for which they do not have permission, the public performance of those works would constitute copyright infringement.”

Again "Permission" is between the writer and the PRO, not the radio station, and the Performance Rights Organization MUST be informed for authorization of the direct license to take place.

So, in simple terms, if Joe Schmoe's music is being played on Radia A and he has not notified his PRO, that he direct licensed Radio A, the station is in copyright infringement. 

The responsibility lies with the station to follow through to make sure that the writer clears it through the PRO. This is not the responsibility of the writer.

Again I reiterate, a very interesting and significant note: If any sort of release was actually ever granted, it would have to come directly from the writer themselves directly to the PRO, not from a radio station! The artist has to contract the performing rights organization. The radio station has no say whatsoever. 

A radio station has no say in a contract between an artist and the performing rights organization. If a station were to say “We have a disclaimer on our website”, they're case would be lost immediately, as they are not part of the contract between the writer and the PRO. 

Additionally, as aforementioned, the writer is completely off the hook. When asked the question:

“Does the artist bear any responsibility if a station playing their music is unlicensed?”

BMI's answer was unequivocal, direct, and to the point “No”.

Licensing to be able to play your songs, is the sole responsibility of the radio station.

Additionally, the songwriter may need to have a separate waiver for each song they want to exclude royalties from, depending on their contract with their PRO. In other words, in many cases, each and every song would need a release sent directly in from the artist, from the e-mail address they have on file with the performance rights organization.

And finally, repeating in the aforementioned cases, the writer themselves must send any or all releases to the performing rights organization. So, if a songwriter has, say, three albums with ten songs each, the songwriter may very well have to send thirty individual releases to their performing rights organizations, depending on how their contract with their PRO is written.Bear in mind,  songwriters list their songs individually with their PROs. The Pros don't have albums listed, they have individual songs listed by the writers. With BMI they are alphabetical. 

Sending a direct release to the radio station is akin to sending your doctor's prescription to an automotive parts department that closed 20 years ago and is 3000 miles away. It's completely irrelevant to your contract with your performing rights organization.

It must be stressed that BMI, ASCAP, and SESAC are working for the best interest of you, the songwriter, per your authorization, as one of their songwriters whose interests they are protecting.

Going back to licensing, currently, the one way that Radio A could operate legitimately without licensing, would be if the artists they play were not affiliated with the three performing rights organizations BMI, ASCAP, or SESAC. However, as stated earlier, songwriters not affiliated with the three performing rights organizations are few and far between. Anyone who is even semi-professional is signed with one of the three. BMI alone has over 750,000 songwriters in their portfolio.

Having set that stage, why would a radio station not want to pay royalties to the artists, which are it's life's blood?

In this example what we see is a bit of a nefarious mystery. The artists spent their time and efforts creating the product. Writing a song could have months invested, in many cases. Yet, a station feels it can use it for free? As a writer, do you feel your time, efforts, and artistic expression is not worth a penny? What's a writer's time worth per hour? Then, there's doing the arrangements and the rehearsal time in getting the song down. When the writer is ready to start recording, there's finances due for studio time, producers, and additional musicians in order to produce the material. This can be a quite substantial investment. As a point of reference, my album “Shanghai'd and Marooned in Key West (things could be worse)” had a total production expense of $15,000.00 for ten songs or $1,500.00 per song. That was a big production for an independent artist, so figure around $500 - $1,000 per song is realistic for a well-produced recording. Again, don't forget the time and effort that went into writing and arranging it. A commercial radio station proclaiming they are playing your music solely as a promotion and not paying you for it is nothing less than a smoke and mirrors charlatan. 

Herein lies the definition of something being highly unethical. Radio A has had sponsorship from rum companies, a bail bonds firm, and a real estate firm, and are actively seeking more. 

Add to the fact that Tiki Radio, Beach Radio, and Radio Trop R pay their annual royalty dues, and hence, pay the artists for the use of their work. That's very fair and within the context of laws which govern royalties.

By not paying you royalties, Radio A is saying “You and your work have no value and I'm not going to pay you for it.”

All four stations encourage artists to send in material, naturally. What Radio A is telling writers is that they'll get great exposure on their station. They call it promotion. Songwriters will get similar exposure and promotion on the other three, the difference being that Tiki Radio, Beach Radio, and Radio Trop R pay the artists for the use of their music. Why doesn't Radio A?

In short, according to BMI, a station doing what Radio A is doing is:

“If the station plays copyrighted music for which they do not have permission, the public performance of those works would constitute copyright infringement.”

By convincing the writer into believing it's a promotion, you're seeing the essence of the term“Smoke and Mirrors”. What they are doing is taking advantage of the songwriter. Mind you, Radio A isn't doing this as a hobby, or just for the love of music. I'll get into that shortly. 

While they are giving the songwriter exposure, they are not paying them for the right to do so, which they are required to do by law.

Let's say Radio A has a link on their website to the artists material at a retail outlet, such as iTunes? Great! That's fantastic. However, it has nothing to do whatsoever with A Radio being licensed and playing the artist's work on the station. That's a completely different issue altogether. If they are playing their music and not compensating them, they are stealing from them, plain and simple. In addition, Radio A has gone out of their way to convincing songwriters that what they are doing is legitimate, which according to BMI, it is anything but.

What it is, is entirely unethical.

Perhaps you may recall several years ago there were file sharing sites, such as Napster? That was a person-to-person web-based sharing of music wherein the artists received no compensation. They were stealing from the writers, artists, producers, and record companies. Both national and international courts stepped in and consequently shut Napster down.

What's happening with Radio A is quite similar in that, while not sharing artists material, like NAPSTER, they are utilizing it without any artist compensation.

It is not the case with Tiki Radio, Beach Radio, and Radio Trop R. They are licensed and paying their songwriters fairly.

While there may be those who view the lure of getting exposure without compensation, as the work of a snake oil charlatan, buckle your seat belt because it gets worse.

There are other stations out there who are not licensed. Those stations do this solely for the love of music. They are not in it for gain. These people are not seeking compensation via sponsors. They do it for the love of music. For many of us, myself included, in my opinion, that's a good thing. 

However, in the already existing exploitation of artists, what Radio A is doing, is utilizing that as a platform to make money for themselves!

While Radio A is not paying artists, via licensing is highly unethical, this goes well beyond that.

Stage two, the crux of all of this, is that Radio A is a sponsored radio station, taking in revenue via sponsorship.

Again, not only do they feel that you, the songwriter, has no value whatsoever and compensation for you is out of the question, but they are using your creativity, hard work, time, and money, to make money for themselves! Again, their view is, you as a songwriter, are there for the only reason, and that reason is for them to take advantage of you.

A) Radio A is not compensating the writers on their station, required under law.

B) Radio A is profiting, via sponsorship, from the use of artists uncompensated works they play on their station.

So, not only are they not paying the artists, but they are also profiting from said artist's works via sponsorship, and are actively soliciting for more. They do not share said income with the artists they are taking advantage of.

If not paying artists for the use of their material via licensing is unethical, how does this translate to utilizing said material for Radio A's own personal profits, with no compensation for said artists?

The word “unethical” is a gross understatement in this case. This is deplorable. Not to mention, highly illegal.

Meanwhile, Tiki Radio, Beach Radio, and Radio Trop R are paying their licensing fees and hence, the artists.

While they are playing by the rules, Radio A is not. What Radio A is doing, is running the artists over with a bulldozer for their own gain.

According to their website, Radio A is selling their lowest commercial spots at $240 a month, requiring a 13-week contract to do so. If we call thirteen weeks a three-month contract that equates to $720.00. There is a total of nine options available for both commercial spots and exclusive show sponsorship. The highest is the weekly 40 show costs $1,200 per month to advertise on, yet again requiring a thirteen-week contract, making a three-month sponsorship approximately $3,600.00.

None of the money generated by Radio A from these sponsorship programs is going to any songwriters, whose time, investment, hard work, and financial investments are 100% what Radio A revolves around and is leeching off of. Sponsorship money goes on a one-way trip from the sponsor to the unlicensed Radio A's cash register.

From an artist standpoint, how do you see it? Stations like Tiki Radio and Radio Trop R pay you for the use of your work. Radio A is stealing from you and treating you like sludge. Why should anyone's music be exploited? That's exactly what Radio A is doing. They are taking artists music and making money for themselves off of it. They are not licensed and therefore, no artists can receive compensation through their performing rights organizations. There's no one hand washing the other here. Radio A isn't going to pay anyone but themselves. They make money off of your work which goes only into their own pockets. These are con-man charlatan ethics.

Why should Tiki Radio, Beach Radio, and Radio Trop R have to pay to play your music, while Radio A doesn't? If you haven't notified your performing rights organization that Radio A is able to use your material free and clear, Radio A is using it illegally. They are not doing it for the love of music, as a side hobby, per say. They are doing it as a commercial enterprise and the fuel they are using to power their commercial enterprise is being pilfered from the songwriters.

Here is another, perhaps most significant and disturbing aspect of the equation:

.Radio A's principal for years had the exact same reply when asked how they got around licensing. The answer was always the same and was well rehearsed. "I have investigated it thoroughly and I found a loophole which allows me to operate as a promotion, not requiring a license to do so. I invite anyone to investigate it".

As you have seen, I took them up on investigating it through my PRO, BMI. According to BMI, there is no stipulation or loophole whatsoever which releases them as a promotion. Yet, the station principal had been saying for several years that he investigated it thoroughly.

As he investigated it thoroughly, he knew full well what the requirements were from the start. Knowing what they were, he then knowingly created a huge deception which included creating a release on the station website, complete with misinformation which had no legal validity to it at all. Additionally, if at one of their live events that were being broadcast, the performer played say, a Jimmy Buffett cover, the station principal and whomever he was working with at the event, would suddenly trot out to the stage with their arms in the air flailing over their heads saying "No Covers! No covers! We're not licensed!" Of course, as he "investigated it thoroughly" he knew full well that he couldn't legally play the songwriter on stage's songs either!

What he did was bamboozle the songwriters with a pre-conceived, false yarn, filled with a smoke and mirrors charade designed to convince everyone that he was on the level. Unfortunately, because of his vicious actions directed at defaming the character of a different radio personality, I took him up on his invitation to investigate his "loophole". You've seen the results.What we were dealing with, simply put, is a con-man who's intents were not to pay the royalty fees, hence, shafting the songwriters. Yet, at the same time, charge sponsors for his own personal profit.

[Update Note: The confirmation that all of this is true, lies in the fact that three days after this blog was published, Radio A attained a license. It must also be pointed out that it is understood that their license does not cover the back royalties that were accrued from the years prior to them getting their license in 2017.] 

In March I notified Radio A that my music was no longer to be played on their station. After this blog was published the station principal told me "I can't air your music after this" To which I replied, "I instructed you to stop playing my music in March!"

For that matter, for the last several years, they've played my music and I've never told BMI I gave them direct licensing. By not telling my PRO, it's not valid. The PRO is the one who gives the release, not the writer.

What am I going to do? Compose around thirty individual song releases and shoot them over to BMI, so a station can knowingly use my material to make money for themselves, and exclude me? 

Meanwhile, the other stations are doing their fair play. If the other stations play by the rules and support me and every other songwriter out there, it's just not right.

I spoke with the legal department at BMI. I did not disclose that I was inquiring about any particular station, but rather an anonymous one. They stated that the songwriters in the case of Radio A, would not receive any compensation. They also informed me that the station needs to be in compliance. 

I thought about all of this long and hard before putting this blog together. Usually, I put a blog together in about six hours. This one actually took a couple of months. However, it had to be done.  I was back and forth with BMI Nashville throughout, and I will say that they all went way out of their way to help me. Particular thanks to JT! Everyone at BMI was very professional and a pleasure to work with! Thank you, BMI!!!

Here are three licensed stations who treat songwriters fairly and with respect. As you might expect, they are in compliance with federal law.

http://www.tikimanradio.com/

http://radiotroprock.com/

https://www.beachfrontradio.com/

For information on collecting broadcast royalties, please visit

https://www.bmi.com/faq/category/royalties