Uneasy Writers : ASCAP Chief, Songwriters Fight Plan to Cut Royalties

Even if the name is not familiar, people know Marilyn Bergman by her words. She has, with her husband Alan, written the lyrics to dozens of elegant pop songs, including “The Way We Were,” “The Windmills of Your Mind” and “It Might Be You.”

But now the 63-year-old Los Angeles resident finds herself in a less harmonious pursuit: leading her fellow songwriters in a major battle over federal copyright law.

Bergman is president of the American Society of Composers, Authors and Publishers (ASCAP), an 82-year-old nonprofit group that, among other things, collects music licensing fees on behalf of its 68,000 members. These fees are not chump change: Last year the group gathered $436.8 million in fees for songwriters, up more than 3% from 1994.

ASCAP members Garth Brooks, Bruce Springsteen and Whitney Houston hardly depend on income from so-called performance rights; such superstars make far more from album sales and concert revenues. But the money makes a big difference to the average songwriter, who has no other means of collecting royalties from every radio station or marching band that might play his or her song.

That’s why Bergman is fighting proposed legislation that would reduce the fees restaurants, retailers and other businesses pay to use background music in their establishments. Arguing that ASCAP and its principal competitor, Broadcast Music Inc. (BMI), already collect enough from major broadcasters, business owners are asking lawmakers to exempt them from paying for songs played over radio or TV. The typical restaurateur may pay $350 to $2,000 a year in such blanket fees covering an entire licensing agency repertory, according to industry experts.

As a result, Bergman, who has herself received some hefty licensing checks over the years, has focused her well-known eloquence on the arcane law of intellectual property. She argues that restaurant owners and others are trying to wangle a freebie, thus depriving songwriters of 15% to 25% of their annual income. Exempting business owners in this instance could create a dangerous precedent for filmmakers and other artists, she adds. BMI has joined ASCAP in fighting the proposed legislation.

“Something that comes from the factory of someone’s mind is just as real as something that comes from the factory where people create things with their hands,” Bergman said in a recent interview at ASCAP’s Hollywood office.

“Somebody made this table,” she said, tapping the tabletop, “and nobody would think of taking this table without paying for it. That’s called stealing. But if I write a song, which is no less of a creation than this table . . . and somebody takes it without paying for it, it’s very difficult to convince most people that’s stealing. [Music] is in the air.”

But the National Restaurant Assn. will have none of that. The Washington-based trade group is leading the charge to reform the song-royalty provisions of copyright law. According to the association, ASCAP and other licensing societies are “double-dipping” by collecting royalties for the same performances from broadcasters and business owners. The group has found new allies in the Republican-controlled Congress that emerged from the 1994 elections.

“We’re very appreciative of copyright laws, but we think it’s been carried one step too far,” said Katy McGregor, a lobbyist for the restaurant group. “We’ve always questioned how many times businesses have to pay for one commercial jingle or song played over the radio.”

Some lawmakers have embraced that view. Sen. Craig Thomas (R-Wyo.) co-sponsored the Senate bill that would amend the copyright law. A companion bill is working its way through the House, though Capitol Hill observers say the legislation could remain locked for months in respective judiciary committees. Earlier this month, Sen. Orrin Hatch (R-Utah) proposed a compromise bill that would exempt small commercial establishments from paying licensing fees and also provide some basic regulations for ASCAP and BMI.

“Asking local bars and restaurants to pay licensing fees to the music giants for music played over common household radios and televisions is absurd,” Thomas said. “These are ‘over the air’ broadcasts that anyone can play on radios in their own homes or cars. We’re not talking about Garth Brooks performing live at Pizza Hut.” He added that songwriters are fairly compensated through royalties from album sales and radio and TV broadcasts.

States are also getting into the act. A bill is pending in the California Senate that would mandate a series of collection and arbitration procedures between business owners and the licensing agencies, according to Stan Kyker, spokesman for the Los Angeles-based California Restaurant Assn.

The tension between songwriters and business owners is nothing new. In 1917, the composers of a comic opera called “Sweethearts” sued a New York restaurant for hiring singers to perform the copyrighted piece without any royalty arrangement. The restaurant owners argued that because they did not charge admission for the musical performance, they should not be burdened with a license fee.

But Oliver Wendell Holmes, then a justice for the 2nd Circuit Court of Appeals, sided with the songwriters. “If music did not pay, it would be given up,” Holmes wrote in his opinion. “Whether it pays or not, the purpose of employing it is profit and that is enough.”

Of course, when Holmes was sitting on the bench the music business was not the enormously complex, $12-billion industry it is today. Songwriters now derive substantial income from CD and tape royalties paid by record companies as well as fees paid by producers who use songs in movies and TV shows.

Then there are the fees for performance rights, which ASCAP determines through a complicated survey inscrutable even to some members. Officials say they monitor radio, TV and jukebox outlets nationwide, but they admit that estimating the number of times a song is performed makes for inexact science at best. “We can’t afford to have a person in every bar,” said an ASCAP spokesman.

But there’s little doubt that a number of struggling songwriters depend on ASCAP royalty checks, which are weighted to reflect a song’s popularity.

Larry John McNally, a 41-year-old Los Angeles songwriter, penned “Nobody’s Girl” for Bonnie Raitt and “Motown Song” for Rod Stewart. He said about half of his income comes from ASCAP fees, which flow fairly steadily after almost 18 years in the business. But getting to this point was an uphill climb.

“The lifestyle I lived was nothing to get excited about,” said McNally, who in his leanest years earned about $20,000 from songwriting. “If people knew how hard it is to make a living as a songwriter, I don’t think they’d be so reluctant to pay you.”

Bergman heartily concurs. Indeed, the co-author of “What Are You Doing the Rest of Your Life” may have found a second calling as an advocate for her fellow artists.

“For every Bruce Springsteen, there are thousands of people out there who are writing songs,” Bergman said. “And out of those thousands maybe a handful of them get a song recorded. And maybe from the performances of that song, maybe they make three or four thousand dollars a year. Maybe.

“You know, it’s a big crapshoot,” she said. “You gotta write a lot of songs before one sticks to the wall.”

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The Sound of Money

A song can generate revenue in several ways. The record company pays royalties to songwriters contributing to a CD or single. But income also flows from “performance rights,” fees that are collected by the American Society of Composers, Authors and Publishers; BMI; and other music licensing agencies.

For every dollar earned by an ASCAP song:

* About 32 cents comes from TV broadcasters

* About 25 cents comes from radio

* About 25 cents comes from sales of foreign rights

* About 14 cents comes from licensing to bars, restaurants and other venues

REVENUE

Less than 1% of ASCAP revenue comes from member dues. Annual revenue, in millions:

1995: $422.7

Source: ASCAP

ASCAP Honors

Recent ASCAP songs of the year (songwriter/artist):

* 1991: “Another Day in Paradise” (Phil Collins/Phil Collins)

* 1992: “Unchained Melody” (Alex North and Hy Zaret/Righteous Brothers)

* 1993: “Save the Best for Last” (Phil Galdston/Vanessa Williams)

* 1994: “When She Cries” (Marc Beeson/Restless Heart)

* 1995: “I Swear” (Gary Baker and Frank Myers/John Michael Montgomery, All Four One)

Recent ASCAP songwriters of the year:

* 1991: Diane Warren

* 1992: Jimmy Jam and Terry Lewis

* 1993: Diane Warren

* 1994: Elton John and Bernie Taupin

* 1995: Robert John “Mutt” Lange

Source: ASCAP