With all the fuss over the McCain camp's use of songwriters' material, I think it would be a good idea to summarize how performance rights work. I have seen a number of misperceptions in threads (including some of my own). Here's how it all works (and if you are knowledgeable in the area, feel free to correct and clarify my comments):
Generally, there are three types of rights enjoyed by the copyright holder (usually a publishing company, and not necessarily the songwriter) of a song. They are:
Performance rights
Mechanical rights
Synchronization rights
If you want to use a song in a live setting (a restaurant, a club, the XCel Center) you need to obtain the performance right to the song. This applies both if the song is being performed and if someone else's prerecorded version of the song is being played.
If you want to record and distribute a song, you need a mechanical license.
If you want to marry a song to visual material (an ad, say, or a movie), you need a synchronization license.
For the most part, the permissions the McCain camp needs are performance rights. Here's
ASCAP's explanation:
A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.) A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet. Generally, those who publicly perform music obtain permission from the owner of the music or his representative. However, there are a few limited exceptions, (called "exemptions") to this rule. Permission is not required for music played or sung as part of a worship service unless that service is transmitted beyond where it takes place (for example, a radio or television broadcast). Performances as part of face to face teaching activity at a non-profit educational institutions are also exempt.
Performance rights are usually obtained by the venue, not by the user. Again, here's ASCAP:
Some people mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers. The law says all who participate in, or are responsible for, performances of music are legally responsible. Since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business.
The venue does not buy a separate license for every song used. Instead, it purchases a blanket license that permits it to use ASCAP's (and/or BMI's) entire library. Unless ASCAP and BMI make determinations that, legally, the McCain campaign derives ultimate benefit -- and they may have done so -- then the XCel Center would be the license holder. On the other hand, if it's determined that McCain's campaign should hold the licenses, then the campaign can purchase a blanket license directly from ASCAP and BMI.
In its simplest form, what that means is that McCain is free to use in a live setting any song represented by BMI and ASCAP, as long as either his campaign or the venue has paid the appropriate fee for blanket rights. Note from ASCAP's FAQ that this should also cover the broadcast and Internet streaming of the Convention (one of my personal misperceptions), though the FAQ is a little unclear on this point. That means he needed no permission from the songwriters of "Barracuda" to use it, though he might have wanted to weigh the PR consequences.
Neither BMI nor ASCAP control mechanical or synchronization rights. From BMI's website:
Songwriters and publishers also receive payments from mechanical licenses. A mechanical license is written permission from the publisher to manufacture and distribute a record, CD or audio tape for a specific copyrighted composition. The amount of the royalty paid to a songwriter from a mechanical license is determined by how many recordings are sold. BMI does not license such things as the making of phonograph records or the printing of sheet music.
Synchronization licenses are another potential source of income for songwriters and publishers. The "synch license," as it is sometimes called, pays copyright owners when their music is used in combination with visual images such as music in films, TV, videos, computer programs, etc. BMI does not offer synchronization licenses. The producer of the audiovisual production usually requests a synchronization license from the song publisher. These rights are administered and licensed by the publisher who accounts directly to the writer. BMI represents music publishers, but BMI is not itself a publisher.
I believe mechanical rights would come into play if McCain used a song in a radio spot, even if it's not the original recording. Most mechanical rights are administered by the Harry Fox Agency, a wholly owned subsidiary of a consortium of music publishers. Most publishers cede their mechanical rights to HFA (though some, notably Paul Simon, do not); therefore, many mechanical rights are available without direct permission from the copyright holder.
Synchronization right used to be administered by HFA as well; they left that market to individual publishers in 2002. If a campaign wants to incorporate, say, Jackson Browne's Running on Empty into an ad, it needs the permission of Browne's publisher. Like most recording artists, Browne owns his own publishing company; he has the right to refuse the license to any and everone. On the other hand, the Lennon/McCartney ouerve is owned by Michael Jackson; McCartney and Lennon's estate have no say in how the synch rights are licensed.
Note: If McCain wanted to use convention footage incorporating the use of "Barracuda" in an ad, he would need a synchronization license.
Some final points: The copyright holder is the songwriter or songwriters, unless the song's copyright is assigned to a publishing company. In order to be paid for public use of a song, nearly all publishers are members of either BMI or ASCAP (or of the much smaller SESAC). And, to address a frequent comment, BMI and ASCAP each distribute about 88% of their revenue as royalties to publishers and songwriters. If you own a small restaurant, they're not exactly your friends; but they're not vultures to performers and songwriters.