Friday, March 11, 2016
BMI Thinks ESPN Should Pay for Ambient Music At Venues
The Hollywood Reporter.
Although some might assume that the airing of such background music constitutes "fair use" — see for example ABC's 1978 legal victory over a song played by a band at a televised parade — determining fair use is a case-by-case process that depends on the specific facts at issue. Thus, BMI says a blanket license that covers incidental and ambient uses is "particularly important."
According to a court filing made by BMI on Tuesday, "Advertisers place a premium on live sporting events ... and ambient stadium music is a critical component of the broadcast that allows ESPN to attract viewers by making them feel like they are sitting in the stadium cheering on their favorite team."
The argument aims to rebut ESPN's attempt to get a break on royalty payments that could amount to about $15 million per year.
Last month, ESPN kicked off this rate-setting proceeding by talking how it "unlike typical television networks ... acquires music rights through direct licenses."
ESPN still wanted a blanket license that would allow it to use BMI's catalog of approximately 10.5 million published songs, but thought the royalty rate should bear some proportional relationship to the amounts it directly paid songwriters and other publishers. "To date, BMI has refused to quote license fees to ESPN for the License Period that bear any such relationship and instead has insisted on license fees that completely ignore the best available evidence of the value of public performances of music on ESPN," states a petition.
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Posted 3:16:00 AM