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Live Nation, AEG and the North American Concert Promoters Association are appealing the ruling handed down earlier this year
By James Hanley on 22 Jun 2023
Live Nation, AEG and the North American Concert Promoters Association (NACPA) have filed to appeal against BMI’s court triumph over performance royalty rates paid by the live industry.
The US collection society claimed victory in the long-running court battle back in March after New York District Court Judge Louis Stanton ruled a new rate of 0.5% would replace the previously tiered rate of between 0.15% and 0.3%, which had been in place since 1998.
The ruling said the new 0.5% rate also applies retrospectively to shows that took place from 1 July 2018.
However, it was revealed this week that the live groups have filed a notice to appeal the decision, which could mean they intend to move forward with the appeal, but could also be a procedural move to keep the option to appeal open. The move was drew criticism from BMI.
“Given Live Nation, AEG and NACPA’s bizarre position throughout trial that concertgoers attend concerts for the experience of the staging, videos and light shows, as opposed to the actual songs and music being performed, their appeal was not a surprise to BMI,” says BMI president and CEO Mike O’Neill.
“For decades, the live concert industry has fought to keep rates suppressed. And even now, when they are making more money than ever, in more ways than ever, they are determined to deny songwriters and composers the fair value of their work, despite the fact that without their contributions, a concert wouldn’t even be possible. BMI will continue to fight on behalf of our affiliates, the creators of the music that is the very backbone of the live concert industry, to prevent that outcome.”
At the outset of the case in 2018, BMI said its total income from the US concert business was $20 million annually
It claims the court’s decision “ended decades of below-market rates”, arguing the revised rate reflected “the importance of music in the live concert experience”.
“The decision also expanded the definition of the total revenue base to which the new rate is applied, taking into account the way modern promoters monetise concerts,” it adds. “This includes tickets sold directly onto the secondary market, servicing fees received by the promoters and revenues from box suites and VIP packages.”
BMI (Broadcast Music Inc) represents the public performance rights in over 20.6 million musical works created and owned by more than 1.3m songwriters, composers, and music publishers.
At the outset of the case in 2018, BMI said its total income from the US concert business was $20 million annually, or less than 0.19% of the industry’s revenue. This number is less than 2% of the $1.118bn it paid to songwriters in 2018 (BMI paid $1.5bn in 2022).
The live groups have not commented on the appeal. However, responding to the March 2023 ruling at the time, Live Nation said in a statement, “We advocated on behalf of artists to keep their costs down, and managed to hold the increase to less than 1/3 of BMI’s proposed increase. This will cost the performers we work with approximately $15 million a year spread out over thousands of artists, and cost increases for Live Nation directly are not material.”
An spokesperson for AEG said back in May: “AEG Presents and NACPA were defending performing artists, who bear the costs of BMI fees, in this litigation. The result is that BMI was awarded significantly less than it sought, which is an important benefit for performing artists. AEG Presents will always support all of the artists who make their living on our stages.”
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