TV Broadcasters Suing Songwriters' Org SESAC Over Pricing Power

from the tug-o'-war dept

Fri, Nov 13th 2009 3:30am — Mike Masnick

Missed this one when it first came out, but Copycense points us to the news that TV broadcasters have sued SESAC, one of the collections agencies for songwriters and composers (the smallest, after ASCAP and BMI), claiming that SESAC is violating antitrust laws in how it prices music used in television shows -- especially for syndicated shows. The details are really quite fascinating. Local stations quite often run syndicated shows (such as sitcom reruns). When they buy the rights to run those syndicated shows, the package includes all of the related copyrights except for performance rights for any of the music included. Those have to be purchased separately by the broadcasters themselves. Now, for SESAC, representing the songwriters, this presents a golden opportunity. It's the only thing standing between the broadcaster and being able to show the syndicated shows -- and thus, it can ask for extremely high prices, or -- more commonly -- pressure the broadcasters into a high-priced "blanket license." Since the broadcasters can't change out the music (it's in the shows already), they generally have no choice but to go along. So, the argument goes, SESAC effectively has a monopoly position, and is abusing it.

Of course, the real "monopoly" here is copyright. At a quick glance, it certainly looks like SESAC is doing exactly what copyright allows -- but the structure of licensing for syndicated TV content allows SESAC to make life difficult for the broadcasters. So, I'm not really sure SESAC should really be faulted here, as it seems to be doing exactly what it was enabled to do thanks to overly broad copyright laws. At the same time, it also makes you wonder why the broadcasters don't go back to the TV program owners themselves and demand that they bundle the music performance rights as well, since there's more negotiating power there. So, while it does seem unfair for the broadcasters as the market is currently structured, I'm not sure it's an antitrust violation on SESAC's part. More a problem with how the industry licenses are set up, combined with copyright being way too broad in such situations.

There's also a separate interesting element to this lawsuit -- which is why it's SESAC being sued rather than ASCAP and BMI. ASCAP and BMI are both already limited due to previous antitrust fights and consent decrees against them, whereas SESAC has been more or less free to act this way. Either way, it's yet another lawsuit concerning aggressive use of copyright to try to demand as much money as possible, even for music that is a small part of an overall presentation of content.

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Filed Under: antitrust, copyright, licensing, music, pricing power, syndication
Companies: ascap, bmi, sesac

9 Comments

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Anonymous Coward, 13 Nov 2009 @ 4:47am

What SESAC is doing is pretty normal, actually, and is caused by the original producers trying to save money by NOT specifically signing deals for the music rights going forward.

It is one of the reasons you don't see WKRP in Cincinatti in reruns, because there is too much music in the show and the original producers failed to get appropriate rights.

I think the real problem is with the original producers failing to secure replay rights up front, and letting that trickle down to the local market instead.
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Hey, 13 Nov 2009 @ 5:07am

I see a market. How difficult would it be to run the video through processing which extracts the audio and then removes the music portion? I should patent this.
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- MBraedley (profile), 13 Nov 2009 @ 5:26am
  
  Re:
  The only issue is that in some cases, it's simply not possible to cleanly extract all of the music, while leaving the dialog and other sound effects intact. In general, the audio is mixed down well before it leaves the production studio, meaning you can't do a simple "delete from audio where track = 'music'".
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Christopher (profile), 13 Nov 2009 @ 6:08am

Corporate disobedience
Defy them and push the issue.
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NS, 13 Nov 2009 @ 7:11am

I would think Hey's comment would be do-able digitally since I would think the music used in shows are not unique recordings, the only real issue I think would be if the show then remixed the music. You could even offer a service to remix in your own ess restrictive music alternative to cover up any reminant of the original song. Or if there is no dialogue, why not blank it entirely and put in your own sound effects/less restrictive music.
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NS, 13 Nov 2009 @ 8:03am

I guess my point is that you couldn't do a worse job than the people taking the cuss words out of movies on broadcast TV.
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Anonymous Coward, 13 Nov 2009 @ 8:21am

Antitrust rules do not turn in any significant measure on the existence of patents and/or copyrights, as evidenced in part by the DOJ's rewriting its "no-no's" policies some years ago. Antitrust in its most general sense turns on market power and the ability to manipulate prices, a situation that arises much more frequently for reasons totally unrelated to the presence of patents and copyrights.
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Some person, 17 Nov 2009 @ 10:23am

I could be wrong but I'm pretty sure TV stations have to air syndicated shows 'as produced' and are contractually prohibited from changing the music. Can you imagine some Paul McCartney wannabe at a station deciding to replace the Jeopardy theme with his own magnum opus? There's a reason this doesn't happen, and I doubt it has anything to do with audio processing/remixing wizardry.
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Jay, 20 Dec 2009 @ 4:05pm

Boo Hoo
I thought artists' main desire was to share their music with the world. Do you think this guy who did the YouTube video "Spoiked" cares about money or fame?
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