DiMA Enters the Debate

Although already receiving public performance royalty payments for full-length ringtones and ringback tones, ASCAP now argues that the 30-second samples customers use to preview the ringtone before purchase should also be subject to performance royalty payments. In a reaction against this, AT&T and ASCAP are battling in a federal district lawsuit; with AT&T claiming that ASCAP should deem the track previews “product information” as they assist consumers make choices about which ringtone to purchase.

Although already receiving public performance royalty payments for full-length ringtones and ringback tones, ASCAP now argues that the 30-second samples customers use to preview the ringtone before purchase should also be subject to performance royalty payments. In a reaction against this, AT&T and ASCAP are battling in a federal district lawsuit; with AT&T claiming that ASCAP should deem the track previews “product information” as they assist consumers make choices about which ringtone to purchase.

Entering the debate, the Digital Media Association (DiMA) has filed a joint amicus brief with the National Association of Recording Merchandisers (NARM) in the pending case. The DiMA represents webcasters and online retailers such as Apple and Amazon, two companies that also use 30-second previews to market songs.

According to the brief, the DiMA contends that these previews do not count as a public performance but instead constitute “fair use.” The concern for the DiMA and NARM is the application of this ring tone case to the online channels used by their clients. As DiMA executive director, Jonathan Potter noted recently, “If ASCAP succeeds in pressing its demand for a new payment for these previews, internet music retailers would be disadvantaged simply because they are selling online, and songwriters and music publishers would be getting a royalty for the preview on top of the appropriate and well-deserved royalty that is paid when the music itself is sold.”