The Blue Highway Beacon: Vol II, NO. 9

And here it is, the anticipated second part of our own Amanda Harcourt’s analysis of the handling of live performance royalty fees in Western jurisdictions. This complex carve-up of the opaque, sometimes incompatible, sometimes rivalrous and often vexing systems here in the United States makes Part 1, which focused on the UK, look comparatively, and indeed even manageably, straightforward...! So, if you’ve read Part One and have been asking us when Part Two would arrive, you’ll already know “the problem” in a broad sense. If you haven’t yet absorbed Part One (which you can do right here), you’ll learn the basics about the so-called plumbing -- the royalty routes for songwriters and publishers.

And while it may best be described as “plumbing,” perhaps you’ll see via this update that the US system looks and feels a bit more subterranean – like an endless network of ant tunnels that one can jump into, but, once in, it’s very difficult to effectively determine where to go next. 

Enjoy the journey for now, and please keep an eye on Blue Highway into the Fall and Winter of 2025. Big, expansive changes are just on the horizon, and we’re soon to be telling you where we are headed next.

– Ian Christopher McCaleb, Founder / Principal, September ‘25

Why Aren’t ALL Songwriters Being Paid for their Songs in Live Concerts?

Part Two of Two: The Situation in the USA

By Amanda Harcourt, Executive Vice President for Intellectual Property Law and

the Entertainment Sectors, Blue Highway Advisory

The Problem (Again):

After Part One of this two-part analytical series, where we focused on the licensing, analysis and distribution of live public performance royalties in the United Kingdom, it is now time to train our gaze on the United States of America. 

As we explore this subject, we suggest that two principles be held ‘top-of-mind’ as you wind your way through this explanatory piece.  

First, always remember that the map is not the territory.  

By this, we refer to the differences between what the US Collective Management Organizations (CMOs) publish on their Web sites, as well as share via PR and royalty statements, vs. the reported experiences of singer/songwriters who have performed live in the US, as well as the experiences and reports of the artists’ managers and concert promoters. Many remain in the dark as to how much has been paid out, or whether the music creators have actually been paid at all.

Second, please continue to bear in mind the aspirational “LEFT” principles of collective management: Lawful, Efficient, Flexible and Transparent. All four should apply equally to operations in the land of the free and the home of the brave.

The US Marketplace:

The 2024 live music market in the US is currently valued, according to Mordor Intelligence, at $15.6 billion, and is predicted to rise to $23.5 billion by 2030. DiMarket, meanwhile, predicts a value of $14.37 billion in 2025. The largest US live concert promoter is Live Nation, which recorded a global turnover of $6 billion in 2024, a year in which they were responsible for more than 54,000 concerts and festivals worldwide.

As far back as 1897, the US Congress first gave songwriters the exclusive right to grant permission for, and to collect money from, public performances. As we know, it is impractical for a copyright owner to try to collect a license fee for each and every song played by each and every user of their work. So, the collective management model is used, and the right to authorize music usage becomes vested in a collective management body. That collective management body issues licenses to music users, collects fees, analyses user data and allocates the royalties accordingly.  

Collective Management by the PROs

In US parlance, the organizations that carry out the duties and responsibilities of the CMOs are known as “Performing Right Organizations” (PROs), so it makes sense to use the local lingo. And, unlike the marketplace for their UK and European cousins, the PROs (plural) are not pure monopolies per se. In the US, PROs are to be found aplenty. And the two largest PROs occupy rather dominant positions, as they are subject to federal regulation by Consent Decrees (see below). For songwriters and composers, there are now four main players and three smaller PROs in the US:  ASCAP, BMI, SESAC and GMR being the main players, and PRO Music Rights, Alltrack and AMRA being the smaller of these organizations.  

There also exist US-based collective management bodies for the copying of music via digital exploitation (the MLC) and the public performance of artist recordings in digital radio (Sound Exchange). These, however, are not the immediate subject of this piece. Here we are only concerned – for now – with the mysterious world of remuneration of songwriters whose works are performed live.

The PRO Players

In US parlance, the organizations that carry out the duties and responsibilities of the CMOs are known as “Performing Right Organizations” (PROs), so it makes sense to use the local lingo. And, unlike the marketplace for their UK and European cousins, the PROs (plural) are not pure monopolies per se. In the US, PROs are to be found aplenty. And the two largest PROs occupy rather dominant positions, as they are subject to federal regulation by Consent Decrees (see below). For songwriters and composers, there are now four main players and three smaller PROs in the US:  ASCAP, BMI, SESAC and GMR being the main players, and PRO Music Rights, Alltrack and AMRA being the smaller of these organizations.  

There also exist US-based collective management bodies for the copying of music via digital exploitation (the MLC) and the public performance of artist recordings in digital radio (Sound Exchange). These, however, are not the immediate subject of this piece. Here we are only concerned – for now – with the mysterious world of remuneration of songwriters whose works are performed live.

ASCAP

The American Society of Composers, Authors and Publishers (ASCAP) was founded in 1914 and is structured similarly to its UK and European cousins. ASCAP is now the only not-for-profit PRO operating in the USA, and has an equal writer and publisher board representation, thereby enabling music creators to contribute to ASCAP policy. Traditionally it represented what were known as Tin Pan Alley writers. ASCAP has an estimated 900,000-strong membership of writers and publishers, and licenses more than seven million musical works. In 2024, ASCAP reportedly collected more than  $1.8 billion in license fees, distributing just under $1.7 billion in royalties.

BMI

Broadcast Music Inc, or BMI, was founded in 1939 by the National Association of Broadcasters, largely in response to ASCAP’s seeking a significant increase in license fees for radio play. BMI sought out members that ASCAP had tended to ignore, becoming the first PRO to represent black genres of music such as jazz, blues and gospel, as well as Latin, country and folk. In 2023, BMI was sold to the investor group New Mountain Capital. In 2022, BMI reported $1.57 billion in collections. However, that figure was published prior to BMI’s being acquired by the private capital firm, and its switch to a for-profit model. BMI’s annual report for 2024 omitted any mention of total annual licensing income, merely acknowledging that its former 10 percent administration fees would increase to 15 percent. 

As mentioned above, and to be continued below, both BMI and ASCAP are regulated by US Consent Decrees. None of the other PROs mentioned here are subject to such constraints.

SESAC

The Society of European Stage Authors and Composers (SESAC) was founded in 1930, and while it originally focused on assisting what were perceived as underrepresented European stage authors and composers, it has become a respected PRO with some 30,000 members and a catalogue of some 1.5 million works. SESAC also runs a music services division. To become a SESAC member requires the company’s approval. Writer-members include talents such as Adele, Bob Dylan, Neil Diamond, Zac Brown and Jack Harlow. The PRO is backed by the Blackstone Group, operates on a for-profit basis, and owns the US’ largest mechanical rights organization, the Harry Fox Agency, which was formerly owned and operated by the National Music Publishers Association. Information about SESAC’s royalty income and annual distributions is hard to come by, but public data suggests an annual income within the broadest of broad ranges; from $100 million to an eye-watering potential $500 million!

GMR

Global Music Rights (GMR) was founded in 2013 by longtime music veteran Irving Azoff.  GMR has fewer writer members and works in its catalogue than either ASCAP or BMI.   But membership is by invitation only, and the creator ranks are made up of what one could call the “heavy hitters” (examples include Cathy Dennis, Bruce Springsteen, Bryan Adams, Don Henley, and the estates of Prince, George Michael and George Harrison).

In addition to the four PROs above, the US marketplace also includes PRO Music Rights, AllTrack and AMRA.  

AMRA is owned by Kobalt and is only concerned with digital royalties. 

So, any would-be music user is operating in a US market defined by six public performance licensing bodies. And thus, in order to secure US licenses for every song and composition in the entire world, there are, in theory, as many as six licenses required for lawful operation.  

Compared with the one-CMO per territory and the statutory regulation of the UK and European monopolies, we should approach discussion of this marketplace with some trepidation and a sturdy willingness to embrace “complexity.” 

The ASCAP/BMI Consent Decrees:

In 1941, all three US national radio networks and a majority of independent radio stations refused to renew their ASCAP licenses when fees were increased. The radio stations chose instead to forgo playing ASCAP music, entirely relying instead on the BMI repertoire. This attracted the attention of the Department of Justice, and an antitrust lawsuit resulted in both ASCAP and BMI being governed by Consent Decrees, or Federal court-approved settlements between two parties (though, instrumentally, neither party admits to any sort of liability via an approved decree). 

US Consent Decrees are binding and enforceable upon all parties named in the decree.  

The ASCAP and BMI decrees require both organizations to offer blanket licenses of their entire catalogues at rates ideally negotiated between the parties and equivalent to those paid by similarly situated users. However, when either ASCAP or BMI is unable to agree to a license fee with a would-be music user, the dispute can be referred for settlement to a Federal judge, and by reference to the terms of each PRO’s respective Consent Decree.

It is now worth bearing in mind two specific things in regard to these Consent Decrees.

First, the US PROs are granted rights non-exclusively by their local members. However, everywhere else in the world, writers grant their performing rights to their local CMO exclusively. That their rights can be used in the USA is possible only because the non-USA CMO passes the rights in their catalogues to whichever US PRO the writer has nominated. 

The effect of this for non-USA writers wishing to direct license songs for an American tour is that their own CMO has to be contacted and given notice that the writer wishes to withdraw the live performance right strand within the copyright bundle.  

This non-USA withdrawal then means that the live performance element of the bundle cannot be passed to the US PRO, as the non-USA CMO no longer has that strand to pass to the USA via their international agreement.  

Are you keeping up so far? It isn’t easy, is it? Imagine yourself as a songwriter, having to sort through this bother.

Put simply, if you in the USA haven’t been sent “our” strand of this writer’s rights, you cannot lawfully issue licenses for those strands of the work by that writer to anybody at all!!

Second, and this is quite the conundrum, the Consent Decrees talk specifically of “works.”  Not rights, mind you, and not strands or categories of rights, but of actual “whole” musical works – the compositions themselves.  

So, all this cunning sub-division is taking place, or trying to, in a context of apples and pears – works vs rights (or parts thereof). In this regard, the US is out of step with the rest of the world.  

There’s more to sort out!

One might assume that the wording of both the ASCAP and the BMI Consent Decrees is identical. But not so! They are separate agreements, and while they share some basic features, they are not identical.  

Both PROs must accept as a member any songwriter who meets their published minimum requirements. But, unlike the exclusivity of ownership of the performing right that prevails in societies outside the USA, the decrees require that ASCAP and BMI may control only the non-exclusive right to license musical performances. The effect is that songwriters retain the right to license their public performance rights themselves – or, if they are signed to a music publisher, and depending on the form of that agreement, their publisher can issue a license.   

This seemingly flexible situation doesn’t, in fact, open the door to any sort of market free-for-all. Publishers are not, in practical terms, able to demand license fees on terms more favorable to them and their writers than the rates offered by ASCAP or BMI.  

Why not? 

Because both ASCAP and BMI are obliged by their Consent Decrees to issue a license to any applicant who applies in writing, and those licenses must be granted on terms equal to similarly situated licensees. 

So, were a writer or publisher to try to hold a would-be licensee to ransom with an inflated license fee, paid direct, that music user can simply opt to work under the terms and the rates offered by ASCAP and BMI. They cannot be refused.

Take an economist’s perspective, one that was presented to the Department of Justice in 2019 when the two decrees were being reviewed: Negotiations over the licensing of intellectual property rights should, in theory, be conducted between a willing buyer and a willing seller. That both ASCAP and BMI are obliged to issue a license to any party that makes a written application throws this free-market principle out the window; an act of defenestration upheld by the very terms of the Consent Decrees.  

To add just a touch more confusion, if one looks at Title IV B of ASCAP’s decree, the PRO is forbidden to interfere with or limit direct licensing. Surely this stands as an inherent conflict with their obligation to issue a license themselves in response to any application? 

It appears that BMI is willing and able to waive its license fee in circumstances where its rights are not performed live at a particular concert, but ASCAP seems not to be similarly situated – despite their being obliged to facilitate direct licensing.

In contrast, as neither is subject to Consent Decree obligations, GMR and SESAC are not required to provide a license automatically on application from a would-be music user. Their licensing negotiations are less fettered and withdrawal of their catalogue is available as a negotiating tactic. SESAC did exactly that with YouTube. And GMR successfully litigated improved radio royalty rates for their catalogue on the stalling of negotiations with the RMLC (Radio Music Licensing Committee).

The Data, or Who “Owns” What?

Problems over the music industry’s song or recording authorship and ownership information are deeply entrenched in the industry, frustrating many players and causing profound disadvantages to the talent commercially.  

There is a history of small independent companies over the decades developing and allocating their own internal works coding systems. This has meant that adoption of the world ISO standard codes, the International Standard Music Work Code (or, ISWC, for compositions) and International Standard Recording Code (or ISRC, for recordings, naturally) has been patchy and slow.  

This is further complicated by progressive industry consolidation. The now three major music corporations (Universal, Warner and Sony), along with an active independent sector, have had to incorporate into their own internal labeling systems the labelling used by the recording and publishing companies they acquire, thus complicating, rather than simplifying their own internal systems.  

One major publisher this author once dealt with in relation to a world-class songwriting team was, at the time, running three active databases simultaneously!

In the PRO/CMO world, some societies – despite the ISWC coding system - have their own internal labeling that is peculiar to their own operations. Such examples might include Tunecode and the PROs’ own bespoke Work IDs. 

CISAC, the Paris-based global body for the world’s author CMOs, operates the global ISWC database.  It is valiantly spearheading efforts to complete the linking of the song labels (ISWC) to the labels (ISRC) for the various recordings of those songs. 

A further complication, or temptation one might say, for the continued poor-quality data is attributable to the standard terms of music creator contracts. Wording found in every songwriter and performer agreement serves as a disincentive as, if a record label or a publisher cannot clearly match the money to the work, the company can keep the cash. 

(But that is one of many Blue Highway stories for another day). 

And, to answer your next question: There is, in fact, no US-wide consolidated works database. 

However, ASCAP and BMI operate a joint service known as Songview which carries the public information as to authors, owners and shares administered in relation to the works available to be licensed from their respective catalogues:  

1. BMI Songview

2. ASCAP Songview

Searching via both systems is conducted by song title, author and/or performer but, nonetheless, Songview only gives a would-be licensee the data about the catalogues of two of the six US PROs.  

The other PROs maintain their own separate databases, so a song search can involve up to four separate searches. 

GMR lists writers in their stable by name, but that is not much help if a GMR writer has co-written a song with a songwriter who belongs to, say, ASCAP or BMI (though one can request a complete GMR catalogue).  

SESAC, PRO Rights and AllTrack all have their own search capabilities. They require entry of specific song titles, authors and/or performers to determine whether the work is controlled by a specific PRO for the purposes of licensing public performance. Co-written works can present a complex sleuthing exercise amongst the possible candidates.   

Now, in spite of all this tangled legalese and the fact that we must still keep in mind that “the map is not the territory,” one might simply sigh and try to get on with things as if the system operated fairly, accurately and cleaved to those previously outlined “LEFT” principles. But managers, singer/songwriters and promoters report that this licensing malarkey does not seem to be delivering as it should. 

ASCAP publishes its license rates on its website as it is obliged to do so under its Consent Decree: 

Live event tariffs vary as a percentage of Net Revenues.

If a promoter wants to run a festival or a concert tour, that promoter technically is required to secure licenses from up to six PROs, but definitely four (ASCAP, BMI, SESAC and GMR).  In practice, this multi-licensing obligation occurs irrespective of what is actually being performed.  

So if a writer is an ASCAP member, and a performing artist plays 25 songs live, (which they wrote), can the promoter just get a license from ASCAP for those 25 songs in the set list? 

The answer is NO.  

It is not that logical.  All the PROs must be paid, and even if no rights, or only 0.1 percent of a setlist is made up of a particular PRO’s catalogue, the full amount of the tariff is required. Nor can a promoter pro-rate an ASCAP license fee to reflect actual usage.

Then what happens to those license fee monies that are collected by the PROs when nothing from their catalogue forms part of the set list? 

Well, surely, you knew it wouldn’t be long before the phrase “black box” cropped up in the US-related discussion?  

All those license fees for live performances, in fact, go into a “live pot” at each of the PROs. In effect, any PRO with no skin in the game – i.e. no songs being performed – is collecting money for works that are owned and controlled by other parties. Those PROs are being paid a license fee for other people’s songs.  

Nice work if you can get it.

Licensing Live Performances – Money Out

In theory, accessing live performance royalties involves the same process as that explored in Part One of this series: you file a planned or performed set list, with venue details and dates, directly with your PRO. As co-writing is common, it may be necessary to file multiple copies of the same set list with multiple PROs to be “assured” of completely reporting live usage across all possibly relevant PROs for all conceivable combos of co-writers. 

So, let’s use ASCAP as an example:

Claimants must sign up for the notification and accounting service known as ASCAP Onstage, and they must agree that payments are to be made to them via direct deposit. It is the writer who must activate this online portal, which is helpful if a singer/songwriter is the sole author and performer, but problems will arise if there are co-writers who are not performing, or works are performed by a non-performing writer who is a member of another PRO from that of the other writer(s) in the band. The claim must be made by that writer via their own PRO’s online system in order for royalties to be claimed. How is such a co-writer to know their work has been sung live?  

There is a perilously short six-month window for notification, and ASCAP provides the deadlines for submission while identifying the distributions that should contain payments. Though, unfortunately, live royalty payment dates for rock and pop are not identified – only those for classical performances. Statements from the PROs do not necessarily show a line item for live events, so it can be a challenge to identify the revenue. Nor are individual songs shown as having generated a live royalty in a statement reporting works’ earnings.  

Despite publishing agreements or management services whereby an experienced third-party shoulders the administrative burden on behalf of a music creator, registration of live performances still sits with the individual writer member of the PRO.  Anyone who has worked with or advised music creators will tell you that their focus tends to be on -- creation.  Administration or logging a work’s meta data do not figure high on the creator’s lists of Things To Do, which then perpetuates the perennial problem of not being paid when payment is surely due.

BMI similarly offers a service whereby the member inputs the data and BMI will process it to determine royalty entitlement. 

AllTrack and ProMusic Rights offer very little information about their analysis and payment systems for live performances, despite their right to collect license fees for every live show taking place in the US.

As with PRS in the UK, there is a two-tier licensing system and tariff rates vary according to the income from a live event. Distributions thus vary accordingly.  

ASCAP license fees for large concerts or tours are allocated across the nation’s 300 most successful tours, with a gross exceeding $1 million, and the balance remaining is tossed into the “live pot.” Annoyingly, nowhere is the list of those 300 tours available from ASCAP, so how would you know if you’ve made the list or not?  This indeed is some twisted version of “Dancing in the Dark.” 

Smaller events are subject to the Onstage claims system touched upon above.

In practice when it comes to the distribution of those live pots of money, music creators are reliant upon the services advertised on the PROs’ websites, but anecdotal evidence unsurprisingly suggests the system is unsatisfactory.

Direct Licensing as a Solution? Yes? No..?

It is worth recalling that direct licensing is formally built into the PRO system in the US by virtue of the non-exclusive assignment of the performing right within the copyright bundle to a PRO.  

In theory, direct licensing for live shows could be relatively straightforward, as a setlist might comprise between six and 25 songs on average. Fractional licensing could be dealt with via a simple spreadsheet, as accounting is arguably more transparent, and figures would be delivered to the writers faster than via the PRO system.  

Moreover, a single administration fee would be levied, which would be particularly  advantageous to writers from outside the USA. And, peace-of-mind accompanies payment if we are to believe the reported difficulties of determining whether one has actually been paid through one’s PRO. 

Within the BMI license agreements with promoters, there is an allowance that if no BMI rights were used at the event, no license fee would need to be paid to BMI. At first blush this might set the scene for direct licensing, but how would a concert promoter necessarily know which PRO has which rights to compositions that are being performed at their event?  

Given the combined effect of the Consent Decrees and the non-exclusive assignments, one could reasonably  expect direct licensing for live concerts to be common and successful in the USA. Anecdotal evidence does not support this assumption.

An example:  

An ASCAP singer/songwriter playing at a US festival elects to direct license. The festival agrees to the proportion of the event that would be that singer/songwriter’s rights, and the direct licensing application process begins. No problems are encountered with BMI and SESAC, both of whom are happy with their pro-rated tariff calculation to accommodate the direct payment mechanism for the singer/songwriter whose works are being licensed directly.  

Not so for ASCAP – the society insists on the full amount of the tariff being paid into their coffers, even though the ASCAP member has notified ASCAP of the direct license, the festival has agreed to direct license the rights, a direct license fee has been paid, and the festival has, in fact, obtained a direct license.  

ASCAP still insists on being paid its full amount anyway, regardless of the effect on the festival's budget and skewing of the marketplace. Basically, ASCAP is requiring payment for rights it does not own or control. 

In reality, ASCAP’s approach undermines the ability of rightsholders to license direct in the US. Their “inability” to operate proportionality adversely affects the economics for both promoters and writers. Is this approach really in the best interests of ASCAP members or any other writer or rightsholder?

Where does this extra cost sit? In the tour settlement, the promoter has had to pay out more than budgeted. Does this cost ultimately sit with the promoter, or is the artist penalized by having to pay those multiple license fees – some appropriate, and some not?

The Bigger Picture, Then

Boiled down to its essence, the issue of accurate and fair accounting for live performance royalties and the economics of live concerts are being compromised in multiple ways by:

• An absence of consolidated works data that might promote streamlined and accurate licensing and accounting.

• License fees being paid to PROs for songs they do not own or control.

• Concert promoters’ costs being driven up by multiple license fee requirements.

• Artists’ managers having to negotiate with promoters as to who bears the burden of the extra tariff monies.

• Opacity in distribution data from the PROs.

The non-exclusive assignment and multiplicity of PROs in the US may be justified by “market freedom,” giving rights owners a choice as to which party they want to grant their rights for administration. Yet when it comes to live performances, the system is uneconomic and unwieldy and, in reality, distorts the overall market.  

There are clear differences between the music licensing needs of a radio station and a concert promoter. The former has multiple contributors to programming, and access to the world’s entire catalogue of works is important. A blanket license that delivers such access is useful and economic, and ultimately of benefit to the consumer. 

A concert promoter, conversely, has a discrete number of musical works, which are to be utilized in a clearly defined manner on pre-agreed occasions at pre-determined locations. 

It seems nonsensical for both parties to be burdened with the same obligations, especially when promoters are being asked to foot the bill for rights to songs they will not use, and which have been “licensed” to them by parties that have no legal interest in the rights of those songs in the first place.  

Or, to put it into the legal originalists’ beloved Latin, does nemo dat quod non habet - the legal rule that one cannot transfer property in which one has no rights - not apply in American law? Put yet another way, if money purporting to be a license fee in exchange for property rights changes hands in the circumstances outlined above, surely this is just money being requested when no goods or services are being provided in return?

Outside the US, as was demonstrated in Part One, it is not a perfect system; the LEFT principles – Lawful, Efficient, Flexible and Transparent – do not always hold sway in real terms. But the exclusive assignment to a monopoly is balanced by the teasing out of the rights in works by the 12 utilization categories (in the UK and EU at least). These are defined by case law and now by statute.  

Right owners outside the USA can choose to withdraw individual or categories of rights in their copyright works and seek more efficient and simplified methods of administration if they so wish (subject to the UK problems highlighted in Part One).  

It seems as if - outside the USA – things are at least trying to function in a free market.  Can we ask for a little bit more effort Stateside?

© Amanda Harcourt 2025