September 28, 2023

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Concert Promoters to Appeal BMI Royalty Rate Court Decision

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Concert Promoters to Appeal BMI Royalty Rate Court Decision

BMI’s recent rate court victory substantially increasing songwriters and publishers’ royalties for live events will be appealed, according to a notice filed by the North American Concert Promoters Association on Wednesday (June 21).

In May, Southern District of New York Judge Louis Stanton awarded the performance rights organization a 138% increase in rate to 0.5% of the event’s “revenue” with an expanded definition of the term to include tickets sold directly onto the secondary market, servicing fees received by the promoters and revenues from box suites and VIP packages. That 0.5% was up from what BMI said was a blended rate of 0.21%, based on 0.3% interim rate for venues that held less than 10,000 seats; and the interim 0.15% for venues that held more than 10,000 during the period of 2018-2022.

At that time, Stanton also set rates for the retroactive period of 2013-2017, with the previously used, less expansive “revenue” definition that only reflected earnings directly from the face value of primary market ticket sales. Those rates ranged from .08% of revenue for venues of up to 2,500 seats to 0.15% for venues with 10,000 or more seats.

On Tuesday, however, lawyers for the concert trade group filed a notice with the Southern District of intent to appeal that decision in the U.S. Court of Appeals for the Second Circuit, according to the filing submitted by Weil, Gotshal & Manges, the law firm representing the concert promoters. The notice to appeal could mean that the group will appeal; or it could be a procedural move that keeps open the option to appeal. The concert trade group had 30 days to file the appeal notice from the last day in court— a few weeks back on a BMI motion regarding interest on whatever fees might be owed from the 2018-2022 term covered by the newly set rates for that period.

In a statement BMI said the concert industry has long fought against rate increases for songwriters.

“Given Live Nation, AEG and [the North American Concert Promoters Association’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,” BMI president and CEO Mike O’Neill said in a statement. “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.”

The concert promoters did not. respond to a request for comment at time of publishing. In May, an AEG spokesperson said “AEG Presents and NACPA were defending performing artists, who bear the costs of BMI fees, in this litigation.” Concert promoters have long billed the performing artist for performance rights organizations’ royalty fees.

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