Origins

     The legal foundation for ASCAP was established in the 1909 copyright law that required permission from the copyright holder in order to perform music for profit in public. With no rights clearinghouse in place, however, copyright holders faced the impossible job of individually monitoring performances of songs to which each held title. Not many years later, composer Victor Herbert was conducting performances of one of his operettas at a New York theater. At dinner one evening in a nearby restaurant, he heard the establishment's house musicians performing his composition "Sweethearts." Herbert became upset that people were paying to hear his melodies in the theater while restaurant patrons were listening to them without paying anything. He brought suit under the 1909 law. A lower court initially ruled against him because the restaurant had charged no admission fee. But the United States Supreme Court reversed the lower court in its 1917 Herbert v Shanley decision. In upholding the composer's claim, justice Oliver Wendell Holmes and his colleagues stated that it did not matter whether or not the performance actually resulted in a profit. The fact that it was employed as part of a profit-seeking endeavor was enough.

     In 1914, before the main legal battle began, Herbert gathered eight composers, publishers' representatives, and lyricists for a meeting that ultimately would result in the establishment of ASCAP as their collection agent. In addition to Herbert, charter member composers included Irving Berlin and Rudolf Friml. Buoyed by Herbert's legal triumph three years later, ASCAP expanded its fee-seeking horizons beyond theaters and dance halls to any place where performance for profit took place. These proceeds then were distributed among ASCAP members via a sliding scale based on the number of compositions to which each held title and the musical prestige (not necessarily popularity) of each work.

ASCAP and Radio

     By 1923 some radio stations had become profit-seeking (and a very few actually profit-making) enterprises that made widespread use of popular music. ASCAP therefore turned its attention to broadcasting, selecting WEAF, American Telephone and Telegraph's (AT&T) powerful New York outlet, as its test case. An aggressive protector of its own license and property rights, AT&T was not in a position to oppose ASCAP and settled on a one-year license of $500 in payment for all of the ASCAP-licensed music WEAF chose to air. This blanket license arrangement would become the industry standard. ASCAP followed this breakthrough by winning a lawsuit against station WOR in Newark, New Jersey, for the unlicensed broadcast of Francis A. McNamara's ballad "Mother Machree." Because ASCAP-affiliated composers were then the creators of virtually all popular music, stations faced the prospect of either paying up or ceasing to play the tunes that listeners expected to hear.

     Perceiving themselves to be at ASCAP's mercy, major-market station owners formed the National Association of Broadcasters (NAB) in 1923 to do battle with the licensing organization. Station radio concerts were far less appealing without the melodies ASCAP controlled, but the annual license fees, which escalated upward from an initial $2 50, were seen as too high for many stations to pay. (Few of them had much revenue, let alone profits, at this point.) In subsequent years, ASCAP used its near-monopoly position in the music industry to charge broadcasters ever-higher rates. Continuous legal skirmishes, congressional hearings, and even frequent NAB­ inspired Justice Department antitrust probes of ASCAP served only to raise the financial stakes and intensify the antagonistic relationship between NAB and ASCAP.

     In 1931, for instance, ASCAP boosted its overall fees to stations by 300 percent, charging five percent of each outlet's gross income. It then broke off dealings with the NAB and began negotiations with individual broadcasters, offering three-year contracts at three percent of net income for the first year, four percent for the second, and the full five percent by the third year. By 1936 it was demanding five-year licenses.

Formation of a Competitor

      When ASCAP announced yet another large increase in license fees for 1939, broadcasters took action and by the following year had established their own licensing organization, Broadcast Music Incorporated (BMI). On 1 January 1941, as BMI labored to build a catalog, most stations stopped paying their ASCAP fees and restricted their music broadcasts to airing songs with expired copyrights and folk songs that had always been in the public domain. Stephen Foster melodies, such as "Jeanie with the Light Brown Hair," became radio staples.

     To ASCAP's chagrin, no groundswell of indignation arose from the radio audience. Further, singers and instrumentalists also replaced much of their repertoire with non-ASCAP material in order to keep their lucrative and visibility-enhancing radio bookings. Many performers switched from playing tunes by George Gershwin, Cole Porter, and Irving Berlin to using non-ASCAP music from South America-a key factor behind the sudden 1940s popularity of the rumba, samba, and tango. Combined with government antitrust pressure, these factors resulted in ASCAP's agreeing to offer per-program fees as well as blanket license fees and the rollback of rates to about half of what they had been collecting.

     By the mid-195os, the number of BMI tunes played over U.S. radio stations had come to parity with those licensed by ASCAP. Most of BMI's success was attributable to the explosion of rock and roll-a pulsating blend of rhythm and blues, country, and gospel music penned by songwriters outside of ASCAP's traditional constituency. BMI scooped up these composers and rode the rock and roll wave to dominance on many Top 40 format stations.

ASCAP and the Payola Scandal

      In 1959 the payola scandal shook the radio industry to its core. Many disc jockeys were accused of taking unreported gifts from record promoters in exchange for "riding" (heavily playing) certain songs (payola). ASCAP added fuel to the fire when its spokespersons maintained that rock and roll, largely the creative product of BMI-affiliated composers, would never have gotten off the ground without payola. ASCAP claimed that 75 percent of the Top 50 tunes owed their success to pay­ ola-a charge meant as much to indict BMI as the practice of payola. With the subsequent passage of amendments to the 1934 Communications Act making payola a criminal offense, the radio industry moved beyond the crisis-but the resulting ASCAP-BMI animosity took a much longer time to cool.

Negotiating Music Rights

      As it has for decades, ASCAP negotiates with radio stations mainly through the Radio Music License Committee (RMLC), a select group of broadcasters appointed  by the  NAB. Although stations technically could negotiate on their own, virtually all rely on the committee to carve out acceptable blanket and per-program license fee structures. For the period through the year 2002, blanket license fees for commercial radio stations were pegged at 1.615 percent for stations with an annual gross revenue over $150,000 or a minimum of 1 percent of adjusted gross income. For stations billing less than $150,000 per year, a flat fee schedule ranges from $450 to $1,800 depending on income. Noncommercial stations pay an annual fee determined by the U.S. Copyright Office. In 2003 this was pegged at $245 for educationally owned facilities and $460 for all other noncommercial outlets.

     ASCAP determines the amount of airplay garnered by each ASCAP-member song via three methods: electronic logging information from Broadcast Data Systems (BDS), periodic logging by the radio stations themselves, and ASCAP taping of station broadcasts.