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CMU@TGE Top Ten Questions: What are the pros and cons of direct licensing your performing rights in live?

By | Published on Thursday 11 May 2017

In the run up to this year’s CMU Insights @ The Great Escape conference, we are going through the top ten questions we will be answering during this year’s programme. Today: what are the pros and cons of direct licensing your performing rights in live?

By convention, songwriters assign the performing rights in their songs to their collecting society, aka a performing rights organisation or PRO. So, in the UK, that means PRS.

With the exception of the US, the society is then usually granted the exclusive right to represent the performing rights in its members’ songs, which means that if a third party wants to exploit the ‘public performance’ or ‘communication to the public’ controls that come with the song copyright they must get a licence from the relevant society, not the songwriter or their publisher.

That includes live performance, even when an artist is performing their own songs. So, while a venue or concert promoter has a deal with the artist, which will likely include some kind of fee, that contract doesn’t grant the host of the show the rights to stage a public performance of the artist’s songs. Because only the society can grant that permission. So the venue or concert promoter needs a licence from the singer-songwriter’s PRO.

If the artist is playing overseas, it’s more likely that the venue or concert promoter will have a live performance licence from their local PRO, which in turn has a reciprocal agreement with the songwriter’s society. So the money due for the public performance on the artist’s songs flows from the promoter to the local society to the songwriter’s society to the songwriter (and, probably, the songwriter’s publisher).

There are various reasons why the licensing of the performing rights in songs is handled this way, not least covers and co-writes. Some or all of the songs in an artist’s set may have been written by someone else, and even the artist’s own songs might have involved co-writers who are not part of the gig, and therefore not involved the contract between artist and promoter.

However, some artists who do predominantly or exclusively perform their own songs when playing live have questioned the efficiency of their royalties passing through two collecting societies when they play overseas, when they already personally have a direct deal with the licensee, ie the promoter.

Plus the singer-songwriter has no control over what happens at the international societies of which they are not a member. Those PROs might have their own policies on what happens to the money as it passes through the system of which the songwriter doesn’t particularly approve.

To that end, some artists who perform their own songs have started licensing performing rights directly to the promoter as part of their wider deal, getting paid directly, and therefore usually quicker and without having to pay a society’s fees.

In Europe, societies are obliged to offer this flexibility to their members. While, when you join a PRO, by default you grant it the exclusive right to represent your performing rights, there is the option to remove certain usages of those performing rights out of the collective licensing system. Like, for example, live performance.

On one level, doing so simplifies things. But on another level, it complicates things. So what happens when you compare the pros and the cons?

That’s exactly what we’ll be doing in The Royalties Conference at The Great Escape next week. We’ll discuss in more detail how all this works with Adam Elfin, who represents a number of artists who have gone the direct licensing route in live. Meanwhile Marie Forte will give her take on this option, and the challenges it may or may not pose.