Remember BMI-ASCAP discussion?

[milod]

http://www.rapidcityjournal.com/news/article_7e0e3bb0-30a8-11df-8d3d-001cc4c03286.html

 

The headline is

 

BMI pulls plug at Dunn Bros

 

A year or so ago there was a similar discussion of how even venues for original material are hit by BMI and ASCAP.

 

The story starts:

 

It has become much quieter at Dunn Bros.

 

The local coffee shop no longer offers open-mike performances on the first Wednesday of the month, after choosing not to pay licensing fees to Broadcast Music Inc. (BMI).

 

Just how BMI, a New York nonprofit organization that enforces copyright laws protecting composers and songwriters, opted to target a small coffee shop in western South Dakota is anyone’s guess.

 

Co-owner Sean Rice believes BMI may have seen the open-mike promotion on the Web. Regardless, the New York company located Dunn Bros. and informed Rice and co-owner Robert Klinefelter that they would need to pay an annual $400 licensing fee for its 12 open-mike performances.

 

Klinefelter, who had hired a manager to bring in a sound system and organize the monthly event, then asked his musicians to play only original music so as to avoid copyright infringement.

 

But BMI again contacted the owners, and said they had to pay the licensing fee or stop holding open-mike nights..

 

“It was too much of a pain,” Rice said. “I have enough to do to keep the place afloat as it is without some outsider telling me how to run my business. It was just one more thing.”

 

There's a lot more on the newspaper site.

 

m

[pohatu771]

The paper (and many other articles I've read) make BMI and ASCAP out to be some evil organization trying to kill live music, but they exist to collect royalties for songwriters. If they don't try to, what's the point of existing?

 

I manage a radio station, and I make sure all of the music we play is being logged, when necessary. We operate on a three-day basis, where, about once a year, BMI requests that we log our music and submit it. I make sure it gets done. This is a small-scale radio station, of course.

 

I'm also a BMI member, and I expect them to collect any royalties I'm entitled to. I'm sure nothing I wrote was ever played at that coffee shop, and probably never in the entire state of South Dakota, but I expect BMI to make sure I'm being compensated for it if it is.

 

It's easy enough to say that all the music performed is original... but when it comes down to it, there are going to be covers in there. It's inevitable. As part of my duties with the radio station, I host a weekly open-mic night, and it's almost entirely cover material. Original songs are infrequent, at best.

[Murph]

They're mostly into collecting, and this is taking it too far.

[NeoConMan]

Will Gibson have to pony up the cash for hosting that Tragically Hip video I posted today?

Or is it up to me to pay because I actually selected the song and added it freely to a public forum?

 

I'm as much of a capitalist as anybody, but it sounds to me like that South Dakota coffee shop might get

sanctioned by the highest court in the land if a waitress is so much as whistling the theme to Gilligan's Island.

 

Rights my ***...

 

:- :-

[milod]

My understanding both of BMI and ASCAP is that they largely determine who gets royalty money by commercial radio play. I doubt that any song I write will receive commercial "broadcast" play. It's a "protection racket" to jump a coffee shop where singer-songwriters are doing their own stuff or traditional folk music.

 

The U.S. Copyright office has confirmed the latter. But both these groups apparently have even copyrighted "arrangements" of Beethoven and centuries-old folk songs. I doubt that Beethoven's relatives are being paid any more than John Lomax paid those he recorded in his "folk song" collection efforts and then copyrighted for himself.

 

However, once the team of lawyers is loosed on you, even if you win, you lose. Probably your coffee shop.

 

It's virtually impossible for an "unknown" singer-songwriter to be paid BMI or ASCAP royalties. "pohatu771" may be a famous artist incognito, but I doubt it. If you are, more power to you - it's a different league from most of us.

 

The coffee shop's cash may go to artists with broadcast "credit." BMI or ASCAP get a cut of the local singer-songwriter's potential pay even without a contract or proof he "stole" another songwriter's material.

 

Your comment about a live performance inevitably including a "cover" is a variation of the "you're guilty until proven innocent" gig. A cover of Beethoven's "Moonlight Sonata?" Or of "Greensleeves?" Will BMI detail who gets cash from the "license?" It's not Beethoven.

 

Neither BMI nor ASCAP log live venue playlists to see if I play "your" stuff. You won't see a penny if your stuff is played in a coffee shop. "You" are irrelevant or they'd ask for a playlist, right?

 

Even the broadcast "play list" thing is "sampled" rather than counted. How is it sampled? Nobody knows except somebody running the little machines at ASCAP and BMI.

 

Pay up or quit; don't quit, we've got a team of lawyers to break you whether you win or lose. Who cares what it does to the local music scene.

 

The selectivity also is interesting. Get an obvious venue, scare them, shut 'em down and get enough press to scare everybody else who doesn't want to defend a federal lawsuit.

 

m

[brundaddy]

Yay corporate music business!

[charlie brown]

We just became a victim of this non-sense. My other guitar player,

and our "booker" went to a neighboring town, to book a gig, in a

venue we've play in, several times before...only to be told, this time,

that they were "no longer hiring Any bands!"...because of the possibility

of being fined, up to $150,000 dollars (per song), by ASCAP/BMI, etc., if any recorded

music, was played, "live covers," or even recorded music (Juke Box), unless

it's been previously sanctioned, and royalties have been paid, already.

WTF???!! I totally understand, paying royalties, to composers, and bands,

IF you Record, their music, for your own personal gain. But, just to play

covers, of their songs, in a bar? It seems to me, it would help keep their

music alive, beyond it's normal "run," on radio, or the "charts!" In all the

years I've played, I've never run across this, until just today...when I got

the e-mail, detailing it, from my Band-mate. Crazy!!

 

And, this is happening, out here, in the "Sticks," not some major uban club circuit. GRRRRRR!

 

CB

[FirstMeasure]

It worked for the Mafia and Insurance Companies, why not the music industry.

 

Hassling the No Name, No Money Making, Day Job Havin' "Johnny (or Janie)come Lately" for a few cents ain't doing anyone any good. I'm sure it costs BMI more to scape pennies than the pennies they're scraping. Not to mention they're just screwing themselves out of Free Advertisement and the very thing that keeps their product alive.

 

Since BMI and Prince have been making sure you can't hear a prince song on Youtube, in a Bar, or at an open mic night, Prince has lost his popularity. If BMI makes sure no one can cover a Chemical Romance" tune they'll never make it to that Lynyrd Skynyrd level of success. I mean, don't they realize that the only thing that kept Classic Rock alive during the 80's was Cover Bands and Open Mic Nights!

 

Simple case of Over-Controlling the product. When the product is art, you have to let it be art. It's not a McDonalds Cheeseburger you guys are making, it's a song! If they don't let their songs become part of the societies culture, it will die before giving them the profits the so Ravenously Want.

 

If they wanted to protect their profit margin, they'd be advertising the Heck out of thier products, not making sure no one can hear them. That just seems like common sense, but I don't think that's a requirement for the Mob....I mean the industry.

[charlie brown]

Oh, man...."Common Sense," is no longer part of anything, in America, or the world, anymore!

At least, it seems that way, to me. Now, more so, than ever! And, I didn't think that was possible! ;>b

 

CB

[FirstMeasure]

Personally I think it's an Undiagnosed mental condition. They have Control Issues, not money making ideas. They've all inherited a business that can't fail. There's just too much back sales of ever popular material that will keep even the most misguided Big Record Company afloat during the worst management imaginable.

[milod]

Well, as I suggested then, it's all over and it's yet another straw on the camel's back of lilve music venues that already is overburdened, especially in rural areas.

 

But it it about money.

 

The whole thing is about money. Record sales are down. Sheet music sales are vestigial. More people sell their own private label original music one way or another without license. The only people getting ASCAP-BMI royalties are those with lotza play on major radio "syndicates," or who have significant sales of recorded music through various more "official" outlets and on "official" member recording companies.

 

So... for ASCAP and BMI to survive and maintain their paychecks, they have become an advocate for themselves regardless that very, very few artists get a nickel for original work.

 

Bottom line is that the threats are even if the open mike nights were all original or traditional folk music, these folks requiring their protection money have suggested that somebody just might be close to something they have written a copyright on, and therefore they'd have to sue the venue regardless. Play music, get sued.

 

In sort, even if you do only music certainly written prior to 1860, or write everything yourself, the venue still is likely to be sued if they've had a visit from the "representatives" and, in effect, be found guilty until proven innocent in a "civil" lawsuit.

 

Even if the venue wins, it likely will have cost them into the tens of thousands of dollars to do so. A comment like, "We would have to make an example of you even if it goes to the Supreme Court" is chilling. Bottom line for the smaller venue? Forget music. Period.

 

Lovely, ain't it? But it should be noted that most "protection rackets" that hit small businesses by various criminal enterprises tend to couch their visits as "to protect the business owner" and "to protect their clients" as well. But we all know who they really are protecting, eh?

 

m

[Hall]

They're mostly into collecting, and this is taking it too far.

 

 

You said it, Murph; "too far"!

 

 

Hall

[Hall]

Will Gibson have to pony up the cash for hosting that Tragically Hip video I posted today?

Or is it up to me to pay because I actually selected the song and added it freely to a public forum?

 

I'm as much of a capitalist as anybody, but it sounds to me like that South Dakota coffee shop might get

sanctioned by the highest court in the land if a waitress is so much as whistling the theme to Gilligan's Island.

 

Rights my ***...

 

 

 

And you said it also, NCM!

 

 

Hall

[damian]

My understanding both of BMI and ASCAP is that they largely determine who gets royalty money by commercial radio play. I doubt that any song I write will receive commercial "broadcast" play. It's a "protection racket" to jump a coffee shop where singer-songwriters are doing their own stuff or traditional folk music.

 

The U.S. Copyright office has confirmed the latter. But both these groups apparently have even copyrighted "arrangements" of Beethoven and centuries-old folk songs. I doubt that Beethoven's relatives are being paid any more than John Lomax paid those he recorded in his "folk song" collection efforts and then copyrighted for himself.

 

However, once the team of lawyers is loosed on you, even if you win, you lose. Probably your coffee shop.

 

It's virtually impossible for an "unknown" singer-songwriter to be paid BMI or ASCAP royalties. "pohatu771" may be a famous artist incognito, but I doubt it. If you are, more power to you - it's a different league from most of us.

 

The coffee shop's cash may go to artists with broadcast "credit." BMI or ASCAP get a cut of the local singer-songwriter's potential pay even without a contract or proof he "stole" another songwriter's material.

 

Your comment about a live performance inevitably including a "cover" is a variation of the "you're guilty until proven innocent" gig. A cover of Beethoven's "Moonlight Sonata?" Or of "Greensleeves?" Will BMI detail who gets cash from the "license?" It's not Beethoven.

 

Neither BMI nor ASCAP log live venue playlists to see if I play "your" stuff. You won't see a penny if your stuff is played in a coffee shop. "You" are irrelevant or they'd ask for a playlist, right?

 

Even the broadcast "play list" thing is "sampled" rather than counted. How is it sampled? Nobody knows except somebody running the little machines at ASCAP and BMI.

 

Pay up or quit; don't quit, we've got a team of lawyers to break you whether you win or lose. Who cares what it does to the local music scene.

 

The selectivity also is interesting. Get an obvious venue, scare them, shut 'em down and get enough press to scare everybody else who doesn't want to defend a federal lawsuit.

 

m

 

 

I've been studying this since I now have to...........The above is true, and it is b*ll sh*t that they are pulling.........

[TommyK]

...

[milod]

Damian...

 

There are times one might wish he was wrong. Unfortunately, in this case, I ain't.

 

Darn it.

 

m

[charlie brown]

Well, I can already (almost) hear the doors clank shut, to musicians, for all the current

small bars/clubs, in this area. This kind of news, spreads like wild-fire, here!

!@#$%^&*(!!!

 

CB

[TommyK]

Just curious.

 

Suppos'n one of the Open Mic participants was a lawyer and decided to take the case pro bono. The case would be tried in SD in the Mom and Pop's back yard (county), right? You think a jury of locals would vote to nail Mom and Pop to their own coffee house wall in favor of a Big city 'Suit'?

[charlie brown]

From "The Dallas Observer" (2008)

 

ASCAP Can Cripple Small Venues

 

Denton's Rubber Gloves was told to pay up more than $8,000 to the industry giant

A A A Comments (31) By Noah W. Bailey Thursday, Jan 10 2008

I don't know about you, but when I pay cover at Rubber Gloves, the Double Wide or the Granada, I would rather not see any of the money going to the Black-Eyed Peas. In a roundabout way, however, this is often exactly what happens.

 

Organizations such as ASCAP (The American Society of Composers, Authors and Publishers), BMI (Broadcast Music Inc.) and SESAC (Society of European Stage Authors & Composers) were founded in the first half of the 20th century to protect the rights of artists and songwriters, creating networks with which to collect royalties from radio, TV and live performances of copyrighted material. It was a system that worked beautifully in its time, but times have changed.

 

In recent decades, ASCAP and BMI have both become more aggressive in pursuing monetary compensation from music venues, restaurants and retail establishments that feature live or recorded music (though some satellite radio and jukebox services include the price of licensing in their fees). Whether it's a 20-piece band playing the swing hits of yesteryear in a dinner club or an 18-year-old playing Joni Mitchell songs in a coffeehouse corner, the organizations have shown they're perfectly willing to do whatever it takes to get the money that legally belongs to their artists, no matter how logical or illogical it may seem. ASCAP even went after summer camps and Scout organizations in the mid-'90s, claiming that fireside performances of "Puff the Magic Dragon," "One Tin Soldier" and the like entitled the publishers to royalty fees.

 

Of course, no one's arguing that a club that books a large number of cover bands shouldn't pay up (by all means, ASCAP, anything you can do to bring Firewater to its knees would be awesome). But Josh Baish, owner of Denton's Rubber Gloves, has had a hard time coming to terms with why his business should submit to the music publishing mafia.

 

"[ASCAP] was after me for $8,465 [in back fees]," says Baish. "After talking to their rep, he says, 'OK, well I'm gonna knock off all these interest payments' and this, that and the other...so pay me $500. It's just like he pulled that number out of his ***. OK, you're hitting me up for $8,000 and then, OK, now it's at $500. I mean, where is the scale, you know? You're sliding all over the place."

 

ASCAP has, however, offered to help Baish get right in the eyes of the law, offering him the chance to purchase a blanket licenseto the tune of $1,700 a year. That doesn't include the amounts BMI and SESAC will undoubtedly come calling for if he pays their competitor. For a small venue such as Rubber Gloves, these fees could easily break the bank. And if he doesn't pay, the prospect of ASCAP suing him is very realand did we mention they've never lost a case? (In such suits ASCAP often seeks fines of $30,000 per copyrighted song playedif the owner of the venue is unaware of the violation. If bands play a cover with the owner's permission, the fine skyrockets to $150,000 per song).Make no mistakeBaish claims he's perfectly willing to pay artists. He just doesn't see how it's fair when a smaller venue such as Rubber Gloves is held to the same standard as a venue that books nothing but cover bands. "I try to be honest with them and go, 'Look, I can't tell people not to play covers.' I had this sign on the side of the stage, and that was laughed off...it's gonna happen. We don't hire cover bands, but if someone throws in a cover, then by all means, monitor it, write down the [original artist] and let me cut 'em a check."

 

Unfortunately, this is not how ASCAP operates. According to ASCAP representative Vincent Candilora, that method just isn't economically feasible. "You could submit a list of all the songs that have been performed," he says. "Now whenever anybody submits what they're performing, we're gonna have to, at some point, go in and audit, maybe at least once a year...The costs of auditing, the costs of receiving these set lists from all the establishments in the country that are using live music...that would have them paying fees higher than what the straight blanket license is.

 

"In principle I understand where they're coming from," he says. "But from an economic standpoint, it's just not a very good way to do it."

 

Instead, ASCAP takes those fees and uses a computer system to assign royalties to member artists on a scale based on the sampling of play lists from satellite, Internet and terrestrial radio. ASCAP members can also submit music-use reports of their own compositions, though the amount given out for such reports amounts to little more than $3 million a year, Candilora says. Basing how royalties are distributed on radio airplay is fine and dandy if you're, say, Fergie or Lee Greenwood. But what if you're Brent Best of Slobberbone and the Drams, who, outside of a brief romance with Lone Star 95.3 FM, has a presence on the airwaves best likened to a drop in the ocean?

 

ASCAP Can Cripple Small Venues

Denton's Rubber Gloves was told to pay up more than $8,000 to the industry giant

A A A Comments (31) By Noah W. Bailey Thursday, Jan 10 2008

...continued from page 1

 

As Best himself recently put it on the popular Denton Rock City message board, "I am an ASCAP member. This means that I should collect money, based upon their system of the tracking of 'use' proportional to said 'use' of my music. Problem is, their bullshit system is the biggest one-sided bell curve you've ever seen...In the end, I, or anyone else 'represented' by ASCAP make no money proportional to what I sell or what of mine is used unless or until I'm as big as Mariah Carey or who-the-****-ever. In fact, all those publishing songwriters affiliated with ASCAP who aren't on that monetary level actually make money for those who are. If I go from selling 10,000 albums a year to 40,000, along with the predictable increase in 'use' (such as jukebox plays and the like), I will never see a proportional increase in royalty payout from ASCAP. Instead, the extra money I earn, along with the thousands of other artists on the lower rungs earning progressively more, will go the top 2 or 3 percent of ASCAP artists already earning millions a year from their vapid ****." (The fact that Candilora mentioned favored Celine Dion songwriter and schlockmeister Diane Warren while conversing on the subject kinda sorta almost confirms this, in my mind at least.)

 

Considering Denton artists near and dear to his heart are also getting short shrift, it's no wonder Baish doesn't want to comply. Unfortunately for him, he doesn't have much of a legal leg to stand on. In fact, it's a wonder anyone wants to open a club these days, given the hassles.

 

 

Sure, the ASCAP representative I talked to was polite and forthcoming. But I also got a slight whiff of the strong-arm tactics employed by the company, whose representatives are probably somewhat less cordial when chatting up your average club owner. "You know, it's not like this is [big] dollars," says Candilora, senior vice president of licensing for the organization. "And when they look at what the possible damages are under the copyright law, it's just stupid for them not to take a license and do it the right way.

 

"There are places who said to us, 'Look, we just do new material. We have them sign a form when they perform here that they're only gonna play their own material and that they're giving us the performance right.' And I said that's fine. But if one of the licensing reps hears them play 'The Gambler,' and it isn't Don Schlitz standing up there, that's infringement of copyright. And quite frankly, since you have gone through the effort of doing this, it clearly tells us that this isn't an ignorant performer. You know what the law is, and you've got a willful infringement." In other words, you might end up owing ASCAP up to $150,000, if you make it to court without surrendering.

 

"Do you know those folks there [at Rubber Gloves]?" says Candilora. "If you do, you'd be doing them a favor if you told them that we're down to our very last resort with them...it's going on five years. That's a long time to be ignoring the law. Like I said, it's a last resort that we sue people. I'd say the clock has ticked pretty well here."

[saturn]

Alright...this thread has really bummed me out!

 

Aside from all the other BS, even if ASCAP does have a case, how can anyone justify a lawsuit of $30,000 to $150,000 per song?

[milod]

Well, I've been bummed out on this stuff for years.

 

RE: a lawyer willing to do the case pro bono in a local court.

 

Ain't gonna happen. First, we're talking federal, not state courts. The venue may be somewhat up to question and we're talking about one buy vs. two or three guys willing to go up to the U.S. Supreme Court.

 

In short the defense lawyer - yeah, in ways we're talking functionally a criminal action regardless how it may be couched - is gonna have to spend years and tens of thousands of his own dollars.

 

In the meantime, there inevitably would be a restraining order against the venue allowing any music, live or recorded, being played until the lawsuit is completed.

 

Strong-arm tactics is an understatement, brothers and sisters. As was written many years ago, "some will rob you with a sixgun, some with a fountain pen." That line is brought to you courtesy of the fair use doctrine proving the truth of the quote from Woody Guthrie's song "Pretty Boy Floyd."

 

Unlike "mafia" extortion, this one had sympathetic treatment by legislation in another era that has since been extended far beyond what any of those legislators likely imagined. And yes, if you ain't one of the bigguns who are major "publishing" corporation-endorsed, you ain't gettin' beans from these marvelously artist centered "licensing" agencies.

 

But to bring change will require some revision to copyright and copyright licensing law, because there's currently enough case law that these guys get away with what most of us would consider immoral and detrimental to development of live music and live music venues.

 

m

[saturn]

Aren't these guys the same ones who shut down all the guitar TAB sites a few years ago?

 

Here's another aspect I was thinking of....does this also extend into private homes? What if Steve has us all over to his place in England and plays "Still Got The Blues" for us? Can he be sued for $10,000.00 by BMI?

[milod]

Saturn...

 

Not sure about the UK.

 

In the US it might depend. If in a saloon ... errrr, in a pub ... who knows...

 

I got hit for having an office behind an office and playing a radio or tape deck and it was just me and a batch of desks, book cases and old 8-bit computers that weren't old at the time.

 

"Yeah, but somebody might be listening to it."

 

Okay - but they'd have to get past the secretarial office first, and she carried a revolver on occasion.

 

m

[charlie brown]

All this begs the question, what constitutes "Copyright," on our

individual, original, songs?

 

Anything you write, or record to a "hard copy" (Paper, Tape, CD, DVD)

is "automatically copyrighted," by law. If you don't have some kind of

hard copy, it's harder to prove. You need the hard copy, and date,

to insure you can prove this. But, even then, it might be contested,

to some extent, if someone is willing, and resourceful enough, unless

it's registered, with the US copyright offices. That's my "basic"

understanding...someone here, that's a lawyer, or knows "Copyright" law,

may be able to expand, on this, some more?

 

Edit: A bit more info, in this link. It relates to animation cells, etc.,

but applies to other media, as well.

 

http://animation.about.com/od/relatedtopics/a/mediacopyright.html

*(last catagory down, on the listing)

 

 

CB

[milod]

CB....

 

I'd say you're more than close enough.

 

The thing that bothers me about ASCAP and BMI is how both also copyrighted so many traditional tunes - how they got away with it, I don't know - and it's almost a farce.

 

The big bad deal is how truly, they've got the venue guilty until proven innocent and given the nature of music, that's virtually impossible and extremely expensive to finally have a decision in your favor.

 

That's how they get away with their game: You literally can't win due to costs of opposition.

 

It needs a change in Congress as much as anything that has seen huge changes in culture and technology over the past century-plus. But because of the specialized nature of it, I'm not holding my breath. Besides, who has the cash for lobbyists, big record companies and these "licensing organizations" or independent musicians and saloon owners?

 

I think they'll find the unintended consequences hitting them pretty hard. Unfortunately I'm likely to be past caring one way or another when it happens. My hopes are more for protection of younger musicians - but I ain't holding my breath.

 

m