Supreme Court rules against ASCAP royalties

[BigKahune]

.

ASCAP licenses close to half of all music that is online and collects close to $1bn in royalties annually. . . . (Article: http://www.reuters.com/article/2011/10/03/music-internet-downloads-idUSN1E77O0MU20111003 )

 

ASCAP argued that the Copyright Act stated that reciting, rendering, playing, dancing or acting a work directly or by any device or process (downloading) is a public performance which entitles ASCAP to collect royalties.

 

The US Supreme Court ruled that ASCAP's interpretation of a section of the Copyright Act was incorrect saying, "Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener." The ruling means that ASCAP's ability to collect royalties could be severely undermined.

 

Just wondered what you guys think about this - that ASCAP was trying to collect royalties on downloaded music (legally purchased/shared), and that the Supreme Court said no.

[rct]

The companies got what they wanted. The harder it is to collect your pay, the less likey you are to self publish via iTunes or some other venue, and the more likely to go right back into the companies that everyone seeks to avoid.

 

The companies that sell music downloads are no longer, according to this, held responsible for collecting royalties for performance on a per download basis. So they got what they wanted.

 

So now, it isn't against the law to download it, it isn't against intellectual property rules and laws to get the music, but lord knows what they are going to do to the kid in his dorm that actually plays the downloaded music.

 

I'd say it's a win/win/win for everyone involved. Except of course for the people that make the music and the people that consume it.

 

rct

[charlie brown]

Does this mean ASCAP/BMI will (finally) stop harrassing (and heavily fining) venues,

where "cover bands" play? We've lost several, in this small area alone, who simply

won't hire bands, at all, do to that, anymore. ???

 

CB

[Guest farnsbarns]

Does this mean ASCAP/BMI will (finally) stop harrassing (and heavily fining) venues,

where "cover bands" play? We've lost several, in this small area alone, who simply

won't hire bands, at all, do to that, anymore. ???

 

CB

 

No. This simply means ASCAP is no longer able to collect royalties for downloads under the premise that downloads are in some way performances.

[rct]

Charlie Brown:

 

Venues have always been responsible for paying a flat rate to ASCAP/BMI every month, quarter, whatever, so bands like mine can play in there without worrying about such things. It's always been the way it is.

 

Here in Southern New Jersey, in the mid 90's, there was a very fast growing Karaoke business boom. Those places fought tooth and nail and would NOT pay ASCAP/BMI for what they did. The legal wrangling began, and a consequence of it was that local bar owners found themselves facing enforcement of something that hadn't really been all that enforced for as long as any of us could really remember.

 

So thank the Karaoke guys, next time you see them. Around here you won't see any, most were pretty much put out of business as soon as the legal stuff started.

 

I don't think any of us would say, around here at least, that ASCAP/BMI were the reason for recent years decline in venues to play in. Most places simply think they see gold in Food, and they'd rather feed Timmy some chicken strips at 10pm them have my band cranking out yet another Skynyrd t00n at stupid volumes. It's pretty simple actually. Until they find that Food is not what makes money in a bar, and they close.

 

rct

[charlie brown]

Well, that's good to know. There's such misinformation, around here, regarding all this,

that I wasn't sure what to believe, or what the "real" problem is/was. Thanks! I guess one

of the venues we play in, the most, has all that taken care of, already. Because we've never

been hassled, about playing cover's, in there. They have "Karaoke" nights too. Some people

feel, the much stricter enforcement of the DUI laws, especially out here, where there are longer

drives, home...have contributed to the lack of decent venues, as well. At least, that's the excuse,

I often hear. But...like most things, it's probably a bit of "all of the above." ;>)

That, and the obvious decline, in rural/small town populations.

 

Cheers,

CB

[rct]

Well, that's good to know. There's such misinformation, around here, regarding all this,

that I wasn't sure what to believe, or what the "real" problem is/was. Thanks! I guess one

of the venues we play in, the most, has all that taken care of, already. Because we've never

been hassled, about playing cover's, in there. They have "Karaoke" nights too. Some people

feel, the much stricter enforcement of the DUI laws, especially out here, where there are longer

drives, home...have contributed to the lack of decent venues, as well. At least, that's the excuse,

I often hear. But...like most things, it's probably a bit of "all of the above." ;>)

 

Cheers,

CB

 

Definitely all of the above. I've been playing around here since 1975 or so, with a couple lapses when I wasn't around here, most recent would have been late 80's. It's a different world for sure, and there just aren't any places to really get out and unwind a band, and the kids will hate this, Like In The Olden Days. But it's true. It just isn't wanted.

 

rct

[BigKahune]

..... Here in Southern New Jersey, in the mid 90's, there was a very fast growing Karaoke business boom. Those places fought tooth and nail and would NOT pay ASCAP/BMI for what they did. The legal wrangling began, and a consequence of it was that local bar owners found themselves facing enforcement of something that hadn't really been all that enforced for as long as any of us could really remember. .....

 

This is what happened in my area - which lead to relentless ASCAP enforcement and maximum fees. What was once a thriving live music scene (just about every coffeehouse, bar, and bar/restaurant had live music), has declined to a mere shadow of those times. ASCAP has killed our live music scene. It's been barely existent for going on ten years now, with no hope in sight.

 

In my view the ruling was correct. I just wish the fees could be reined in on live performances. I've got a cousin who has a restaurant bar and he's had it with ASCAP - no more live music.

[charlie brown]

Yeah, and you can imagine my "surprise/shock" after being away from all this

for 30+ years! LOL In "the good old days" ('60's & early 70's), there was

a "live band" dance, every weekend, within the (surrounding) areas, and even

more so, in the cities. With no mention, of ASCAP/BMI...even if there was some

presence, back then. Now, we're really lucky, to play once a month, around here.

There are still (somewhat) more opportunities, in the larger cities, but even they

aren't nearly as active, as they used to be....with some notable exceptions, as always.

[jannusguy2]

I've always found it a bit aggravating that I have to pay ASCAP/BMI/SESAC fees for artists I promote in concert to play their own music. Why am I paying theses licensing fees for John Prine (or whomever) to play his (their) own songs? I'm already paying them a guarantee. On a bigger show I'm sometimes forking over several hundred more dollars in these fees. Seems like a scam.

[L5Larry]

I've got a cousin who has a restaurant bar and he's had it with ASCAP - no more live music.

 

Yeah, but even if he plays the radio (on more than one speaker) he'll need a BMI license.

[BigKahune]

Yeah, but even if he plays the radio (on more than one speaker) he'll need a BMI license.

 

Good point Larry and sadly true. They've got you one way or another. I read a news report a couple years ago - they went after a large auto shop for playing a radio loud enough for everyone to hear. More than X number of people listening (I forgot the number, but it was less than 10) and they want their fee.

[charlie brown]

Good point Larry and sadly true. They've got you one way or another. I read a news report a couple years ago - they went after a large auto shop for playing a radio loud enough for everyone to hear. More than X number of people listening (I forgot the number, but it was less than 10) and they want their fee.

 

 

So, if one is "jamming" on some "cover" song, in one's own house or apartment,

and anyone else hears it, they (ASCAP/BMI) can come collect royalties, or fine you?

I've heard rumors, to that effect, but that seems a bit extreme, and hard to enforce.

 

What's next? Use any part, or note, from a recorded lick, and you have to pay royalties, on that?!

 

I was insensed, and felt it was ridiculous, at the time, that George Harrison had to pay some compensation, for using the same chord structure, in "My Sweet Lord," as was used in The Chiffon's "He's So Fine!" Blues players, and a LOT of Country music, or folk music, uses the same chords, and similar, and sometimes exact melodies, for as long as they've been doing it...they just change the lyrics.

 

CB

[milod]

ASCAP/BMI attacked a coffee house in a nearby town where singer-songwriters did their own thing for a couple of bucks.

 

They - and several other venues - dropped all live music.

 

Here's two sides of the deal that bug me:

 

1. Look at how artists are paid. It's for sheet music sales (yeah, right) and for broadcast performances gathered through sampling of stations that regularly play recorded music. Live gigs don't count. But...

 

2. The venue owners are bugged by these folks even if they have only original music because the venue cannot prove artists they hire are only playing original music. Pay up a monthly fee on at least a year's contract or face civil lawsuits that take everything a small venue operator owns.

 

As far as I'm concerned, it's obvious that the little guy, either the artist or the folks who own the venue, are not what these bureaucrats are looking for. They want to own all the music and pass on some to major artists so they can keep the scheme going.

 

When they even claim ownership of folk songs hundreds of years old, and they do, there's something dreadfully wrong.

 

Royalties on downloads should typically be sold by the record producer who may, or may not, pay the artist, depending on how various contracts run.

 

AS/BM simply wants a piece of the action from independents too, is what this seems to me, so they'd get a piece of the action of everything vaguely "music" downloaded from anywhere, using the same argument they use to bully small independent venues.

 

m

[Notes_Norton]

Most (if not all) of the places I play in have a blanket license from ASCAP allowing them to have the entertainment play copyrighted songs. I do know of one venue that refused to pay the license fee and now no longer has live entertainment of any kind (it turned into a sports bar).

 

I have very mixed feelings about this. If I was sure the person who wrote the songs I play in these places got the royalties, I might be for it. After all, I want to be compensated for my own original work.

 

However, without a playlist I really doubt that the royalties are going to the songwriters in the proper proportion. After all, how does ASCAP know that I just played a song written by and recorded by a late 1960's "one hit wonder"? It doesn't. So where is the money going?

 

On the other hand, I really do not think that the local band playing a tune by any particular songwriter cuts into the sales of the song. When a song by The Beatles. Lady Gaga, Michael Buble or anyone else becomes number one on Billboard, shouldn't the public have the right to sing it? Doesn't the public own enough of the song "Happy Birthday" for the wait staff in a restaurant to be able to sing it without an ASCAP license?

 

I believe there should be copyright laws, but I don't agree with the way they are written or have evolved. But I comply anyway.

 

Unfortunately our Republic which started out to be "government by the people and for the people" has now become an oligarchy with the tacit motto "government by the major corporations and for the major corporations." That's my story and I'm sticking to it.

 

Notes

[milod]

Bob...

 

AS/BM only care about live music small venues as long as they get their cash. There's no record ever of who does what music and they force the assumption by threat that you pay or they put you out of business.

 

Who gets the cash from places where the specific songs are undocumented? The AS/BM folks themselves and their lawyers. The only documentation is from tangible sales and air play. That means only a certain group of artists attached ... golly whiz ... to record firms.

 

At this point in time, especially with the Internet tossed into the mix, I think copyright law on music has gone berserk and AS/BM to maintain their bureaucracy has helped bring us here.

 

m

[rct]

I think it is no more than current conditions and ways of getting music have moved beyond the scope of how these ways of collecting this money have developed.

 

All of you, as (hopefully) guitar players that would like to get paid for what you do, need to realize that if some business is getting wealthy off of your music without a dime to you, you would be extremely unhappy.

 

That's all it is about, that's all it has ever been about. Unfortuantely, in Americur, we have one way of doing things that amounts to a zero tolerance kinda thing, and it just doesn't work. Sure, we need to collect funds from people that make money directly off the music. Bars. But a car shop blasting Hits1 to entertain the mouth breathers while they are getting Lubed Jiffily? Not really. But we don't have ways to deal with all ways to do things. Too hard, and nobody wants to work hard.

 

Remember, if you ever wrote something and heard it in a place or in a way that you were not getting compensated for, you would probably have a very different view of it, especially if the place or the way was getting wealthier directly as a result of the music.

 

rct

[charlie brown]

The point is, the "artist(s)" aren't getting a dime, of these fines, or "license

fees." And, I'm all for, the artists getting their proper due!

 

As stated, all that goes to these collectors, and the lawyers. The artists

have no real way of keeping track, of every venue, or "musician," playing their

music, in whatever place, or form, they may be doing so. Even in "the sticks," where I

am currently residing, these folks are pretty "hit and miss," with whomever they

decide to "target." This makes the "Payola" scandals, of the 50's/early '60's

pale, by comparison. But, even that, is "the way of the world," these days...

from the "Government" (if one can really call it that, with a straight face?),

on down to the local booking agents. Corruption, reigns supreme. Cynic, that I

am! ;>b

 

CB

[rct]

The point is, the "artist(s)" aren't getting a dime, of these fines, or "license

fees." And, I'm all for, the artists getting their proper due!

 

As stated, all that goes to these collectors, and the lawyers. The artists

have no real way of keeping track, of every venue, or "musician," playing their

music, in whatever place, or form, they may be doing so. Even in "the sticks," where I

am currently residing, these folks are pretty "hit and miss," with whomever they

decide to "target." This makes the "Payola" scandals, of the 50's/early '60's

pale, by comparison. But, even that, is "the way of the world," these days...

from the "Government" (if one can really call it that, with a straight face?),

on down to the local booking agents. Corruption, reigns supreme. Cynic, that I

am! ;>b

 

ASCAP and BMI will happily explain their distribution matrix when you sign your publishing collection up to them to do. Sure, they get some and you get the rest. If you want to be an arteest and go around making sure you get yer due well, good luck with that. It's like Democracy. It's the worst thing there is, but it's the best we got right now. Something like that, Churchill said it.

 

rct

[charlie brown]

ASCAP and BMI will happily explain their distribution matrix when you sign your publishing collection up to them to do. Sure, they get some and you get the rest. If you want to be an arteest and go around making sure you get yer due well, good luck with that. It's like Democracy. It's the worst thing there is, but it's the best we got right now. Something like that, Churchill said it.

 

rct

 

(Smile)

 

CB

[milod]

The problem is that the setup of AS/BM is such that they keep the money, not the artist except for a few who are on popular broadcast media - and even then, only samplings are taken.

 

Radio stations pay AS/BM to play music on air. Then they want more from the shade tree mechanic shop with one employee because somebody might walk into their one or two service bays and hear the news? If the radio runs one of my songs, it's not on enough to hit the samples and I'll never see a dime regardless.

 

Again, there's no taking of playlists from live venues. That means _all_ the money from the small saloon or coffee shop goes to AS/BM bureaucracy rather than to any artists who wrote or recorded a piece.

 

The concept made sense in days of sheet music and cylinder or disks pre-radio.

 

Then they figured how radio stations could pay. As radio station numbers increased they dropped playlists that were a real reflection of usage in favor of sampling that they won't explain how is handled. Now they want to charge per paid download which is the same as buying a CD/Record/tape _whether the music or other material falls under their idea of their copyrights or not.

 

What's next? Frankly I think they're so big and bureaucratic and bullying that they should be humbled a bit or we're in more trouble as musicians than we wish to believe.

 

Take away the small venue and you take away the potential of professional development of a lotta folks.

 

m

[Daryl M]

As a songwriter, (and certainly not a lawyer), it was always pretty simple to me. The record companies pay you on units sold, and ASCAP pays you on airplay or public performance. Since a legal download is a purchase and not an airplay nor a public performance, then I don't see where ASCAP has a dog in the hunt. It's another incident where common sense is checked at the door. If a venue markets the use of music to attract customers, to me that is a public performance. I don't think I've ever gone to the grocery store or the auto repair place just to hang out and hear some tunes.

 

The real problem is, technology is changing the music business faster than the suits that run it can figure out an angle to save their cash cow. They are committed to preserving their golden rule: "He who has the gold-makes the rules."

[milod]

Daryl...

 

I'm in total agreement on the cash cow thing.

 

But... Check how they do the "live performance" thing. There is no playlist taken anywhere by either of these outfits that would get you a nickel's worth of royalties. So... where does the cash from live music venues go? Into corporate pockets to bully more venues out of business.

 

m

[rct]

Daryl...

 

I'm in total agreement on the cash cow thing.

 

But... Check how they do the "live performance" thing. There is no playlist taken anywhere by either of these outfits that would get you a nickel's worth of royalties. So... where does the cash from live music venues go? Into corporate pockets to bully more venues out of business.

 

m

 

I'm sorry Milod, but yer talkin out yer keister. ASCAP will explain to you clearly how it is done. The cash from live music venues goes same place the cash from big teevee and movie and radio goes, out to the artists via a fairly complex, but public, distribution matrix.

 

If you have ASCAP manage your collection rights, you will get something. Period. None of this is lost in The Mans mysterious briefcase, it's all there. Google is yer friend if you aren't an ASCAP/BMI writer.

 

The cost of doing business varies from place to place, and of course from business to business. Nobody with any sense ever said that running a nightclub fulla bands like mine was easy. But they did say, always have said, that payin yer ASCAP is a cost of doing that business. In NJ, it is nothing compared to the insurances and licensing fees you have to pay just to serve a luke warm Coors Light. Anyone that uses ASCAP as the excuse that was the breaker of their business is pretty much bee essing you.

 

rct

[milod]

Again, note there is no song list from most live venues for either giant.

 

That means the cash goes to the bureaucrats therein or to those who get broadcast play. Yeah, that's slightly oversimplified.

 

But again note that even those that specialize in singer-songwriters who do their own thing are told, "yeah, but we don't know that, so we're gonna hit you the same as the rock or country bar that does oldies."

 

No song list in bars. "Sampling" of broadcast that's never explained and is kept as a secret.

 

That doesn't sound like the little guy gets much, or that the bar payments go to artists that aren't on a certain list, eh?

 

m