How Collective Management Organizations Remunerate Musicians Worldwide

• Author: Daphne A. Bugelli - Daniel J. Gervais
• Position: Daphne A. Bugelli is a graduate of Michigan State University College of Law, class of 2016, and a member of the Tennessee Bar. She is currently the South Regional Director at Kaplan Bar Review. Ms. Bugelli is passionate about working with musicians and practicing in the area of entertainment law in Nashville. Daniel J. Gervais is a professor at...
• Pages: 58-61

Published in Landslide® magazine, Volume 9, Number 5 , a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2017 by the American Bar Association. Reproduced with permission. All rights reserved. This

information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The glamourous lives of modern

music royalty like Taylor Swift

and Drake may lead aspiring

songwriters and performers to dream

of being like their idols: “twenty-ve,

sittin’ on $25 mil.”1 To help reach that

level of success, however, music cre-

ators (songwriters and performers)

should understand where their revenue

comes from and how to maximize it.

One major source of music creators’

revenue is payments they receive from

collective management organizations

(CMOs). CMOs are entities designed to

facilitate music licensing for both music

users and music creators. In the United

States, the best-known organizations

are commonly referred to as perform-

ing rights organizations (PROs). In this

article, the broader, international term

“CMO” will be used to refer to organi-

zations, both in the United States and

abroad, that manage public performance

rights and other music rights, such as the

right of mechanical reproduction.

International and National

Recognition of Authors’ Rights

Authors’ rights in their creative works are

recognized on a national level as well as

an international level. In 1886, the Berne

Convention for the Protection of Lit-

erary and Artistic Works was adopted.

This treaty, still today the most impor-

tant copyright treaty in existence, focuses

on “the protection of the rights of authors

in their literary and artistic works.”2 This

goal was reiterated in part in the 1994

Agreement on Trade-Related Aspects

of Intellectual Property Rights (TRIPS

Agreement), another international agree-

ment, which was part of the Marrakesh

Agreement Establishing the World Trade

Organization (WTO), in which most of

the Berne Convention was incorporated.

Every sovereign nation enacts its

own laws on intellectual property

protection and enforces those laws.

However, parties to international agree-

ments such as the Berne Convention or

the TRIPS Agreement have agreed to be

bound by a set of minimum standards.

These treaties provide a oor or base-

line for copyright protections. Laws

protecting authors are also found in the

domestic legislation of most countries.

The U.S. Constitution, for example,

states that “Congress shall have Power

... [t]o promote the Progress of Sci-

ence and useful Arts, by securing for

limited Times to Authors and Inventors

the exclusive Right to their respec-

tive Writings and Discoveries.”3 Article

I, section 8 of the U.S. Constitution

thus protects authors’ works and gives

authors exclusive rights, while also

encouraging public dissemination, use,

and reuse of protected works. This bal-

ancing of both sides of the policy scale,

namely to protect the author’s exclu-

sive rights (i.e., to prevent certain uses

of the protected works) while secur-

ing the public’s interest in accessing,

using, and reusing works, is difcult to

achieve. At times, it seems paradoxi-

cal to try to maximize both the creation

and the dissemination and access to

new human knowledge expressed as

works of art and of the intellect.4

Protection of Music: The Basics

In most countries, including the United

States, songs are protected by two separate

copyrights. The musical work or composi-

tion—that is, the song itself (for example

on sheet music)—has its own copyright

protection. In fact, the lyrics and music

can be protected as different works if they

weren’t created at the same time or jointly.

The sound recording (the xation of a

performer or performers performing the

song) has its own set of rights. The dura-

tion (term of protection) of all such rights

is independent from one another.

U.S. copyright law provides authors

of original works with a bundle of eco-

nomic rights. These can be described

broadly as the right to make copies of

the work (reproduction right, or in the

case of many commercial uses of music,

the “mechanical right”), the right to pub-

licly perform or communicate the work

to the public (performance right), and

the right to create adaptations of the

work (derivative right).5 In the United

States, mechanical rights and public per-

formance rights are often managed by

different CMOs, while derivative rights

and the work’s use in lms, advertis-

ing, or theater (synchronization and

grand rights) are managed by authors or

their representatives (publishers) on a

case-by-case basis. Countries outside of

the United States recognize another set

DaphneA. Bugelli is a graduate of Michigan State University College of Law, class of 2016, and a member of the Tennessee Bar. She

is currently the South Regional Director at Kaplan Bar Review. Ms. Bugelli is passionate about working with musicians and practicing

in the area of entertainment law in Nashville. DanielJ. Gervais is a professor at Vanderbilt Law School, where his research focuses

on international intellectual property law, having spent 10 years researching and addressing policy issues on behalf of the World Trade

Organization, the World Intellectual Property Organization, and other organizations. Before joining Vanderbilt Law School in 2008, Professor

Gervais was acting dean of the Common Law Section at the University of Ottawa, where he also served as acting dean and as vice-dean for

research and academic vice-dean. He is a member of the American Law Institute.

Meeting of the Minds

By DaphneA. Bugelli and DanielJ. Gervais

How Collective Management Organizations Remunerate

Musicians Worldwide: A Guide for U.S.-Based Songwriters

and Performers