Should ASCAP Get Paid for Ringtones?

Hear that? Your cell phone is ringing – and under copyright law, that might just be a public performance.

Currently, the American Society of Composers, Authors and Publishers (ASCAP) is embroiled in a legal battle with AT&T over the nature of ringtone licensing. Last month (June 2009), ASCAP filed an opposition to AT&T’s motion for summary judgment on the question of whether ringtones can be considered public performances.

ASCAP claims that ringtones are public performances and that its songwriters and publisher members deserve a cut of the AT&T’s ringtone revenue. But does that snippet of your favorite song played for 30 seconds before you answer actually constitute a public performance? Many groups and individuals don’t think so.

ASCAP is a Performing Rights Organization that collects and distributes public performance royalties to their members, which include songwriters, composers and publishers. It offers blanket licenses to radio stations, venues, restaurants, and the revenue it collects is paid as a public performance royalty to its members when their songs are played on the radio, in a stadium, a restaurant, or other public places where lots of people can hear music. A mechanical royalty, on the other hand, is paid to the composition copyright owner when their work is reproduced or distributed — for example, when someone makes a copy onto a CD and sells it. (Performer compensation is a different story, which we won’t get into here.)

AT&T already pays mechanical royalties on ringtones, following the District Court for the Southern District of New York’s 2007 declaration that ringtones are downloads and must be mechanically licensed. However, ASCAP is now asserting that ringtones also constitute public performances because they are similar to “streaming activity” and that “AT&T markets ringtones as a way of [consumers] gaining recognition in the outside world.”

In response to ASCAP’s claim, various groups filed amicus curiae briefs (or “friend of the court” briefs) supporting and opposing ASCAP’s position. Electronic Frontier Foundation’s brief claims that playing a ringtone is a personal, everyday activity beyond the scope of the public performance right. A favorable ruling for ASCAP, says EFF’s brief, would “endorse the remarkable proposition that millions of American consumers break the law every time their mobile phones ring in public.” Other groups opposing ASCAP's position include the Consumer Electronics Association and Public Knowledge. Supporting ASCAP's position are Broadcast Music, Inc. (BMI) and the Society of Composers, Authors and Music Publishers of Canada (SOCAN).

What do you think? Are ringtones public performances or are they plain ol’ personal uses?