With this piece, James Johnson aims to provide guidance and an advanced starting point for general practitioners, intellectual property lawyers and entertainment attorneys on music licensing. To explain music licensing Johnson first imparts a fundamental understanding of relevant copyright law. It enumerates five exclusive rights of music copyright owners. (1) Reproduction is the right to reproduce the copyrighted work in copies or phonorecords. (2) Adaptation is the right to prepare derivative works based on the copyrighted work. (3) Distribution is the right to distribute copies or phonorecords of the copyrighted work to the public by sale, rental or lease. (4) Public performance is the right to publicly perform the copyrighted work including by means of a digital audio transmission. (5) Public display is the right to publicly show a copy of sheet music or lyrics by means of a film, TV, motion picture or on the Internet. Therefore, inherent in these rights music has two distinctive sets of copyright protection: the rights to the musical composition, and the rights to the sound recording of the musical composition. The article offers a brief history of copyright acts of 1790, 1909, and 1976 as well as the 1995 Digital Performance Right in Sound Recording Act and the DMCA. It also walks through the various licenses necessary to utilize copyright music in different mediums and formats.

The article also urges practitioners to have clients who are songwriters join a performance rights organization such as ASCAP, BMI, or SESAC. The article describes the functions of the organizations to grant licenses, collect the license fees, and pay the royalties for a particular song to the copyright owner and to the songwriter, usually on a 50/50 basis. However, many recent agreements between songwriters and music publishers are allocating a greater share of the publishing income to songwriters, up to a 75 percent. A major task for practitioners is to determine when a license is required, who has the right to grant the desired license and what type of license is appropriate. For example, a blanket license allows a radio or TV station to perform any works in the performance rights repertory during the term of the license for a specific negotiated fee. The blanket license permits a licensee to perform or broadcast a large variety of copyrighted works without worrying about illegal infringements. It also facilitates administrative record keeping, which can result in more accurate payment of license fees to the correct parties.

Randal Picker's article characterizes scope-of-permission goods and discusses the ramifications of allowing or limiting such goods. The article describes scope-of-permission goods as a form of private public goods, exclusion is possible but an individual's consumption of the goods does not impair another's consumption of identical goods. Therefore, the same goods are delivered with arbitrary amounts of access. In the absence of rivalry in consumption, the use of the goods does not prevent or limit another's use. Examples of these goods which are operated by granting different levels of access to individuals include satellite TV, computer software, and copyrighted works. Therefore, these markets exist due to entry barriers, pre-existing as with copyright or created by the organizations in the field as with Microsoft's development of software. Excluding individuals' opportunity for consumption through market organization, technology, or law raises the issue of whether or not barriers should be diminished to allow for greater entry.

The section of copyright focuses mainly on performing rights organizations. The article focuses on how in recent years ASCAP's blanket licenses have been reduced. Additionally, there have been measures to impose greater pricing consistency for blanket licenses and newly established sublicenses. Reducing the scope of ASCAP's permission control is theoretically designed to lower costs for licensees when they reduce the use of PROs' music. This also makes it possible for broadcasters to substitute music from another source, which can encourage competition in the provisions of music by copyright collectives.

Susan A. Russell's article consists of four parts: an overview of web casting, groups and arguments involved in the web casting debate, web casting legislation, and the future of web casting. The overview in part one defines web casting as internet radio. It is considered different from over-the-air-broadcasts in that it offers more highly-themed genres. Part two divides the debating parties into two groups: those in favor of governmental regulation and those opposed. The groups seeking governmental regulation are concerned with the copying and broadcasting of illegal recordings such as the unauthorized broadcasts of live concerts and illegal downloads, which can adversely affect CD sales. These groups also defend CD prices because of the factors that go into production: recording costs, studio fees, studio musicians, sound engineers and producers, marketing and promotion costs. Due to these costs less than ten percent of all new CDs that enter the market each year are profitable. Opposing organizations such as Boycott-RIAA and CAR (Citizens Against RIAA) claim governmental regulation cannot benefit both artists and record companies. These groups claim web casting can have a beneficial promotional effect. Furthermore, they claim that overall production costs are typically deducted from the artists' royalties so CD sales primarily benefit record companies. Part four concludes the article by expressing concern for blocking the internet's ability to divest information.

Part three brings performance rights organizations into the discussion. The Digital Performance Rights in Sound Recording Act of 1995 and the Digital Millennium Copyright Act addressed the issue of digital technology and web casting since previous copyright acts could not anticipate the influential effects of these media. The 1995 act created provisions that cable and satellite audio should pay royalties through a subscription service; however, it did not address web casting. Therefore, the DMCA was faced with formulating governmental regulations during its consideration of web casting. Congress set conditions that licensees must meet in order to obtain a statutory license. First, licensees must agree to pay royalties in addition to licensing fees. Second, they must follow Congress' set limitations as to the frequency and the diversity of songs web cast. Third, web casters must employ available measures to ensure that the listener does not copy the music broadcast over the Internet. While ASCAP, BMI, and SESAC provide the standard license agreements, Congress created a new governmental organization, SoundExchange, to collect additional royalties.

William Nye's article deals with the issue of blanket licensing by performance rights organizations. The article addresses the concern of PROs that they do not have enough control of royalty distribution because mechanical and performance compensation is separated, and the opposing view that organizations such as ASCAP, BMI, and SESCA already have too much control. The article examines the antitrust litigation pertaining to blanket licensing of music catalogues which went on for nearly 60 years. The most notable cases concerning television involved CBS and the Buffalo trial. Following the court's decision to uphold the legality of blanket licenses in the CBS trial, the Buffalo trial raised "competing away" and "public good" arguments. This article examines both positions from a purely economic standpoint. "Competing away" claims that if copyrighted music was licensed at its source, competition would lower the up-front fees for television production. PROs supported the "public good" argument which states blanket licenses allow for lower synchronization fees and encourage the use of music in television. The article examines the economic value of both arguments. While it finds some merit in both positions the author sides with "competing away" as slightly more cost effective than the "public good" model.

This article provides some insight into the complexity of the litigation by demonstrating the effort economists, attorneys, judges, and the public have put in determining the net value licensing options. The magnitude of concern regarding PROs is also verified by the fact that the entire dissertation focuses on only two of the numerous competing hypotheses surrounding the issue. While the findings of the article do not make a strong claim, it seems clear that there is room for logical debate in several of the fields of music broadcasting.

Michael Einhorn addresses the precedents, factors, and practices that led to the 2001 motion to amend the monopolistic licensing practices associated with performance rights organizations. Music licensing had grown to a billion dollar industry and two organizations, ASCAP and BMI, controlled 97 percent of American compositions in their catalogs. ASCAP generated a substantial amount of its license revenues from blanket licenses, 45 percent from television and 36 percent from radio. The decree replaced this "all or nothing" policy and allowed broadcasters more competitive substitutes to the previous blanket contracts. In past antitrust litigation, ASCAP's blanket licenses have been upheld because they were considered non-exclusive and its license fees were under the surveillance of the district court. Previous cases could only speculate as to the cost saving benefits that would derive from the injunction of blanket licensing without offering empirical support. Further weakening the argument was the fact that the markups of individual program licenses, in part because of blanket licensing, made the blanket policies seem reasonable.

The new decree is considered an improvement to save shareholders in the broadcast industry considerable amounts through competition. However, the decree also receives criticism for being too optimistic in its assessment of the health of competition in the market for performing rights organizations. ASCAP and BMI do not currently operate under administrative rules that can consistently adjust blanket license fees in response to differing uses of their catalogs. Consequently they lack the financial ability to rely on market-based competition as a means of compensation for all songwriters.

The "Music Copyright FAQ" section of the Broadcast Music Incorporated (BMI) website offers insight into both music licensing and the importance of favorable public reception for PROs. This portion of the website contains an overview of BMI's copyright ownership, the basic rights and licenses associated with music copyright, and examples when music licensing is required. The portion on mechanical rights, for example, offers illustrative anecdotes about music copyright. Such as, the music in The Big Chill soundtrack requires a master use license for the use of the original recordings as well as a mechanical license granting the right to record the musical works onto the soundtrack. However, for the soundtrack of the film The Bodyguard in which Whitney Houston sings "I Will Always Love You" by Dolly Parton, it was not necessary to obtain the master use license since Whitney created an original recording of the song. The Bodyguard still needed a synchronization license to use the song in the film, and a mechanical license to produce the song on the soundtrack.

This section also provides up-to-date information on licensing such as the fees for mechanical licensing: 9.1 cents to record songs less than 5 minutes long or 1.75 cents per minute to record songs over 5 minutes. The BMI website as with other PRO sites offers a common sense argument for music performance agreements, why businesses should accept them, and the benefit the program has for music artists. While the site offers an abundance of practical information, it presents a clear bias for performance licensing with no mention of the potential lack legitimacy of copyright exclusion or shortcomings of the business model.

This case provides one of the numerous examples of antitrust litigation levied against performance rights organizations such as ASCAP and BMI. CBS contended that blanket licenses to copyrighted musical compositions at fees negotiated by PROs were an illegal form of price fixing. The District Court dismissed the complaint, but the Court of Appeals reversed and remanded the issue for consideration. The Supreme Court divided the reason for its verdict into four parts. The first part of the decision called attention to the nature of the organizations involved in the suit. CBS was a national commercial television network, and that ASCAP and BMI while they owned the copyright to almost every domestic composition, three million and one million compositions respectively, were nonprofit organizations. Another factor that weighed against CBS was that it had failed to attempt to acquire any other form of license before filing its antitrust suit. Part two focuses on the application and interpretation of the Sherman antitrust act regarding contracts, conspiracies, and combinations in restraint of trade. In this part, the court also found that the business practices of the PROs were not infringing. The third part examined the practice of blanket licensing independently, and while the practice was somewhat questionable the court determined that it was not a clear economic threat. Part four ordered the reversal of the Court of Appeals opinion.

While in this case the traditional licensing practices of PROs were upheld, the verdict did not close the door on antitrust suits against the organizations. Instead it is marked by clear ambiguity regarding the policy of blanket licensing. A recurrent theme in the courts verdict is that the specific circumstances and presentation of the case dictated the outcome of the case rather than the inherent legality of PRO business models. This prompted further litigation and challenging of PRO policy which led to the adoption of smaller piecemeal licensing agreements in addition to blanket licensing.

This section of a Communications Law website provides two articles which document the 1996 controversy when the ASCAP threatened a Girl Scout day camp for its music copyright infringing practices. The first article blasts ASCAP for the fear and discontent the threats instilled in the camp administrators and girl scouts. It depicts scenes of young campers learning to dance the Macarena in silence, and not being allowed to sing happy birthday for a six year old. The article also provides support for the legality of ASCAP's actions by listing its customary fees, and the general acceptance of its standards by the American Camping Association. The second article demonstrates ASCAP's attempt to save face after the horrific press the incident caused. ASCAP executives claimed they made a mistake in indiscriminately informing over 8000 summer camps of federal copyright law. They stated that they intended to collect fees from large, profitable summer camps, but should have done more research in compiling their mailing list. The article also commented on how ASCAP provided a valuable service for collecting monetary compensation for its musicians and songwriters.

This entry helps to illustrate the dichotomy of public opinion pertaining to performance rights organizations. On one hand, they seem to be copyright trolls that bully innocent groups of people. On the other, they seem fair, but staunch defenders of artists' welfare. While the articles primarily focus on ASCAP since it is the most prestigious PRO, the first article also mentions SESAC warning the camp that it will collect additional royalties for Bob Dylan songs. These articles highlight the importance of legitimacy for licensing organizations in general. ASCAP trades off its ability to appear as a benevolent organization. When public reaction lampoons its collection habits, it rescinds its efforts.

Songwriter Harvey Reid's article expresses his intrigue with the complexity of music licensing. A significant portion of his curiosity is aimed at the circumstances surrounding PROs including ASCAP, BMI, and SESAC. In the article Reid divides his understanding of PROs into three sections. The first relays the history of ASCAP and BMI. The second section divulges Reid's understanding of the function and methods of PRO systems. In this section he compiles a partial list for some of the uses that are exempt from performance licensing fees: religious organizations (during worship only), non-profit educational institutions, record stores and other establishments where the primary purpose of the performance is to sell the music, government bodies, state fairs and agricultural events, certain veterans and fraternal organizations during charitable social functions, various "non-commercial" and charitable performances, and movie houses.

The third section clearly conveys the tone of the article as it consists of a list of grievances and complaints of unfair practices against ASCAP. There is concern that license fees are poorly distributed as royalties to the appropriate artists. For example, it is doubtful that the fees paid by several smaller performance venues ever reach the musicians and songwriters who perform on the stage. Another concern is the arbitrary treatment of works in the public domain. For example, ASCAP has over 40 cataloged version of Beethoven's "Moonlight Sonata" and almost 80 arrangements of "Row, Row, Row Your Boat" despite the fact the songs are in the public domain. Radio stations that pay higher licensing fees are more likely to have the songs they play receive royalties because of the ASCAP surveying process. Reid also expresses concern that ASCAP is inefficient and spends too much on self-promotion and legal fees. While some of Reid's research and proposed solutions seem as shadowy as he claims ASCAP to be, the article voices the concern and frustration of many songwriters in relation to PROs.

    Chapter 4 “Pop, Queer, or Fascist? The Ambiguity of Mass Culture in Kenneth Anger’s Scorpio Rising” highly regards Kenneth Anger’s film. The objective of the author is to minimize the influences of Scorpio Rising that many associate with European cinema such as the works of Banuel and Eisenstein, and instead to focus on its involvement with popular American youth culture. The ambiguity of the film’s stance on the pop culture is carefully examined as it simultaneously celebrates the freedom of subversion and condemns the life threatening danger and fascist identification that can arise from egocentric pleasure seeking.
    Three approaches the text uses to analyze the films ambiguity are homosexuality, mass culture, and totalitarianism. Though the bikers in the film were not gay, the author contends that Anger clearly presents them as objects of homosexual desire. This is supported by the emergence of the biker aesthetic becoming associated with S&M practices in gay popular culture. The overabundance of masculinity and macho poses blur the line between patriarchical dominance and homosexual fetishism. The concept of overabundance also ties into the rise of mass culture as opposed to high culture. This is accomplished by the juxtaposition of the clips of Marlon Brando and James Dean with films of Jesus which can be interpreted as elevating or diminishing the figures of each. The film also addresses the similarity between totalitarianism and a public subscribing to a uniform iconography through prevalent Nazi imagery and violence; the mimicry the bikers practice is correlated to following fascism.
    Unveiling the homoerotic as well as the connection between eroticism and violence which are subdued in conventional youth culture is one of the more overt effects of Scorpio Rising. On the other hand, the more ambiguous elements of the film can only be resolved though subjective interpretation.

    Chapter 13 of volume 8 “‘What Went Wrong?’ American Avant-Garde Cinema of the 1960’s” begins with a concern about the meaning of authorship and uses the films of Kenneth Anger, all beginning with the phrase “a film by Anger” as a starting point of analysis. The expression “by Anger” envelops two important aspects of Avant-Garde filmmaking of the 1960’s. It represents both the individual vision, as films were often the product of a single author, and the aggressive style inherent in the movies, which confronted expectations of film and addressed relevant social issues. Anger and his work are not mentioned much after the beginning of the chapter. Instead, a broad and thorough analysis of the Avant-Garde movement of the 1960’s is presented in terms of its emergence and the response of filmmakers to the social context of the 1960’s concerning politics, sexuality, and race.
The changes in American cinema were marked by the failure of Hollywood studios. Therefore, there was a strong influence of European cinema particularly the French New Wave. The new American Avant-Garde was also closely associated with the formation of social bonds. Hence the initial geographic isolation of the movement was principally centered in New York City and San Francisco Bay. However, the text does not fix a narrow concrete definition on the complex movement acknowledging the exception of Stan Brakhage working out of Colorado.
    The chapter contends intertextuality, addressing issues that were larger than those portrayed explicitly in the film itself, connected the experimental films of the 1960’s together, as well as linking some experimental films to the Hollywood’s genre. Parody and rethinking of Hollywood conventions were a recurrent motif of Avant-garde filmmakers, and helped shape the identity of experimental film as a contrast to the repression that lurked in Hollywood.
    While the chapter examines several distinctive directors and their major works, it conscientiously groups them into social and ideological categories. Thus, it bridges the gap between individual vision and universal resonance. Films of the movement were distinguished by individual authorship and a resentment of racial and sexual oppression, which the Avant-Garde filmmakers collectively combated against.

    Chapter 7 “The Forties: Maya Deren and Her Acolytes, Wizards of the Id” discusses the prevalence of Avant-Garde of the 1940’s. While the importance of Kenneth Anger is often stressed during the 1960’s along with the newcomers Jack Smith and Andy Warhol, this text examines the earlier origin of Anger’s career acknowledging the impact of Maya Deren. Deren’s Meshes of the Afternoon rejects imposed realism of Hollywood and reveals spatial illusions created by editing, offering a critique of the inherently false nature of Hollywood. Anger’s work matured through this the formula evidenced in 1947 by his film Fireworks as well as his later works. However, in contrast to Deren’s total rejection, Anger held a complex love-hate relationship with Hollywood.
    Anger was very well versed in films of the 1920’s and 1930’s, and grew up with close connections to the studios. His grandmother was a longstanding costume designer who landed him the role of an extra in A Midsummer Night’s Dream. He was also a dance partner of Shirley Temple. These childhood experiences instilled a fascination with the mythic qualities of Hollywood. He was also influenced by the philosophies of Aliester Crowley who taught disobedience and subversion as the key to joy. Consequently his films contain both the use and criticism of established modes of Hollywood. Anger’s films provide analysis of the star system by emphasizing importance of the main characters, but rather than invent stars, Anger took the approach of documenting what he recognized as fascinating in his subjects. Another aspect Anger sought to expose was the underlying sadomasochistic quality of submitting to a movie. In doing so Anger forms a recognition that his films exist as a counterpoint to Hollywood films and not as an entity on their own. Anger’s fresh approach helped to reshape mainstream media as the importance of popular music in Scorpio Rising almost serves as a precursor to the contemporary music video. Criticism of Hollywood presented in Meshes of the Afternoon was undoubtedly a driving force in Anger’s films, but not without Anger’s simultaneous homage to the industry he found so captivating.

 
    Stevenson’s article contends gay cinema is one of the few subgenres of independent film to flourish in America, especially at a time when mainstream Hollywood ideals and style dominate. The relatively recent acceptance of gay film has been achieved after decades of struggle for the right to create, distribute and have use of homoerotic images, and finally with the right to watch these images in the public setting of the movie theatre.
    Beginning around 1915, gay images first appeared with the first stag films. Male homosexuality in the films was almost nonexistent, and this can be attributed to the lack of an organized homosexual market to sell the product to. Access to gay sexual imagery after WWII became simpler with more affordable, available movie equipment as well as an increase in gay liberalization as seen in openly circulated gay magazines
    The gay cinema of Kenneth Anger and his contemporaries marked the beginning of the American gay underground Avant-Garde movement which was dedicated to the exploration of a deeper psychosexuality. Because homophobia was still widespread throughout society and censorship was rampant, it was difficult for these films to access a larger public, and these films were distributed underground to a small circuit of film clubs and societies. The idea of film as an artistic personal expression struggled to be accepted in a time when film was primarily seen for commercial value.
    In the early 60’s, the gay underground merged with the New York centered Underground movement and the provocative film, Scorpio Rising, produced a huge impact. This work of cinematic art was disguised as porn and distributed in the commercial sexploitation market. The trial in which Scorpio was ruled obscene brought the film great publicity, and increased its reputation, and it finally came to be praised by the mainstream press.  The success of Scorpio helped to reveal the fact that there was an audience for artistic gay film, and this helped to separate it from commercial sexploitation pornography.
    The last of the barriers were broken with the arrival of gay hard-core pornography in 1969. Today, gay film-makers are no longer classified as gay liberation activists, and can be considered as creative artists producing movies, that are not necessarily gay films, for a wider audience.

 
    Interestingly there is not mention of Scorpio Rising in this article, but it does offer insight into the sensationalist modes of biker movies of the 1950’s, 60’s, and early 70’s. The interest in motorcycle gangs arose most significantly with the emergence of the infamous Hell’s Angels in the mid-1960’s. These bikers gained notoriety through the media, and it was press stories that aided in the creation of biker movies. These movies often used other genres as templates, especially the western, and this fusion led to confusion.
    The media gave the group great publicity by making known to the public the sensational exploits of the outlaw bikers. Mainstream media created the public image of motorcycle clubs when they further depicted the bikers as savage brutes threatening civilized society. News coverage presented very deviant actions of the Angels who enjoyed playing up to their immoral reputation against conservative, middle class society, and a Newsweek article even speculated on their homosexuality. These press stories were transformed into biker movies that heavily relied on media coverage for their story. The release of The Wild Angels in 1966 was met by great success, and this began the trend of a cycle of films on outlaw biker gangs continuing up until the early 1970’s.
These exploitation movies often made use of other genres as narratives and templates, such as themes of war, gangsters or cops. The most commonly used template was the western in which overt parallels were drawn between outlaw biker gangs and outlaws of the Old West. The author attributes the failure of exploitation cinema to exist for an extended time particularly to their fusion of news reports and movie genres. This synthesis of two separate, established forms of media, which have their own distinct and independent structures of semantics and syntax, result in conflict and confusion, and lends to the fact that exploitation films failed to develop their own stable structures.
    The outlaw biker film came out of the negative media publicity of biker gangs, especially Hell’s Angels. Exploitation films have failed to make use of the deeper structures of meaning of the genres that they employ, resulting in confusion and leaving biker gangs elusive and contradictory.

(this site times out, but the article can be found by performing a title search on the page the link goes to)
    At least as early as the 1960's, Hollywood and independent cinemas have experimented with conventional popular genres concerning generic, heterosexual masculinity, and fused it with alternative, subcultural versions of masculinity. The author focuses on the psychedelic or popular-modernist films of the late 1960's and early 1970's that utilized the narrative and iconographic structures of established genres to explore and challenge traditional male identity and behavior. The subgenre of psychedelic film contains subjective qualities that cause the film experience to be a "head trip" that both transforms and provides an enjoyable mental journey. Characteristics of psychedelic film include protagonists identified with college students and political protest, pacing and editing in the tradition of European art films, the use of anti-realist formal and narrative elements, and tendencies of art cinema and exploitation film.

    Modernist elements are employed to upset the generic foundations of the male protagonist, which usually reaffirm the privileged position of male characters and spectators. The psychedelic film shares similarities to American experimental film of the 1960's such as Scorpio Rising in the use of modernist elements to challenge major worldview, perception, and representation. Psychedelic film uses experimental form in the alteration of the classic narrative genre with its ideological biases, especially those concerning gender. The level of confrontation and critique achieved by these films are related to that level achieved by Kenneth Anger's radical gay films. Scorpio Rising transformed the motorcycle genre with implicit homoerotic and violent gestures.

    Recent films concerning alternative views of masculinity linked to popular genres have achieved success, but it is only superficially challenging. At the core is the reassurance of stable, heterosexual masculinity. The author notes that the shift from popular modernist cinema to contemporary cinema is evidence of an increase in filmmakers' claims of the significance of privileged male experience.