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More People Realizing That ASCAP And BMI Are Killing Local Music Scenes

Culture

from the stomping-them-out dept

Fri, Jun 11th 2010 05:24pm -

The Guardian recently had an article wondering if “the internet” was killing the idea of the local music scene with a “local sound.” In discussing that article, Glyn Moody says it’s much more likely that it’s absurd licensing regimes that are killing local scenes. Indeed. This is something we’ve discussed for a few years. The excessive demands of licensing and collection societies have really damaged local music scenes harming countless up-and-coming musicians by closing down the main venue for most new musicians to build up their performance chops through demands for ridiculous and excessive licenses.

It seems that more people are noticing this.

The Boston Globe recently had an article highlighting how these practices are incredibly damaging for local music scenes:

Across New England, church coffeehouses, library cafes, and eateries that pass the hat to pay local musicians or open their doors to casual jam sessions are experiencing a crackdown by performance rights organizations, or PROs, which collect royalties for songwriters.

The FurdLog blog wonders that if people say downloading unauthorized material is “theft,” then what should we call this practice of performance rights organizations bullying small venues around the country into closing. What a shame. It’s really stunning how much harm ASCAP, BMI and SESAC are doing for musicians — the very people they’re supposed to help.

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Companies: ascap, bmi, sesac

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Comments on “More People Realizing That ASCAP And BMI Are Killing Local Music Scenes”

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206 Comments
Anonymous Coward says:

““They’re selling coffee for four dollars and they can’t afford a dollar a day for music? If they don’t think it’s worth it, that’s their choice,’’ Candilora said.”

quoted for truth. if music is an integral part of their business model, cant they afford $1 a day for it? this is for a place that might have spent hundreds of dollars on speakers and such.

Reed says:

Re: Re: Re: Here you go

Here is a link talking about a nightclub owner making a partial payment of $1,800 for the rights to play BMI music.

http://www.dmcityview.com/archives/2006/11nov/11-23-06/cover.shtml

That is well over $30 bucks a month and it doesn’t end there because that is just with BMI music. You also need deals with other organizations if you want to play “their” music as well. Apparently you need to hire a lawyer to research the songs you play so you know all the parties you need to pay. Pretty damned ridiculous if I say so myself.

abc gum says:

Re: Re: Re:2 Here you go

“Last year, Blues on Grand was served a subpoena for its past due bill, totaling $9,600 in unpaid licensing fees, service charges and interest. On Sept. 22, four Polk County Sheriff’s deputies and a Des Moines Police officer served a court order to confiscate cash from the club’s register and doorman. It was the first of four such levies served during a three-week span by local law enforcement officials, which netted about $3,000.”

Corroborating evidence may just confuse the poor AC

Anonymous Coward says:

Re: Re: Re:2 Re:

but the coffee shop can always not play the music. if music isnt an important part of the atmosphere and what allows them to charge $4 or $5 for a coffee, then why not just live without it. oh, wait, the music is a key part of the value of the establishment to the visitors, and as a result is worthy of payment. it cannot be both ways.

Reed says:

Re: Re: Re:3 Dumb alert!

Music is an integral part of my life, should I pay a percentage of my earnings because of this?

It doesn’t stop with establishments based around music though. In the UK they have been going after business like a mechanic shop that happens to play their music a little too loud. Yep they owe too!

The sham is all this music is already paid for many times over. Your support of this is nothing more than a tax on a tax on a tax.

Don’t let me stop you from supporting “the little guy” because I know those lies help you sleep at night.

Mike C. (profile) says:

Re: Re: Re:3 Re:

But the music is NOT a key part. The music was a MONTHLY (you know, one part of one day out of an entire month) open mic. From the article right above your cherry-picked quote:

“Among them is Magret Gudmundsson, who until recently hosted a monthly acoustic open mikeGudmundsson and her ilk.”

For a business where they play music every day, I am absolutely certain the fees would be far higher.

Anonymous Coward says:

Re: Re: Re:3 Re:

“but the coffee shop can always not play the music.”

and you can always not play music in your house with your guitar. Or you can always not play the radio. Or you can always not sing. Or you can not go outside and get sunlight. Every time you want to watch television you must pay me $50 an hour or else why not just live without it?

“if music isnt an important part of the atmosphere”

Then don’t play the radio in your house and don’t sing.

“then why not just live without it”

Why not live without singing. Why not live without using the telephone. Why not live without unnecessary talking. Why not live without sunshine.

If I want to make a song and allow a restaurant or someplace to play it, why should this third party leech get paid for contributing nothing of value. Just because music adds value doesn’t mean a third party parasite that adds no value should get paid every time someone wants to play music. If these people want to make money why not simply work for it, instead of suing others for no good reason.

Anonymous Coward says:

Re: Re: Re:4 Re:

“you can always not play music in your house with your guitar. Or you can always not play the radio. Or you can always not sing. Or you can not go outside and get sunlight. Every time you want to watch television you must pay me $50 an hour or else why not just live without it?” – all this does is show how little you understand about copyright, fair use, and other things. it does however clearly prove you are a moron willing to derail a conversation with nothing but bullshit. makes me think my point is extremely valid and you have no real comeback.

PaulT (profile) says:

Re: Re: Re:3 Re:

“but the coffee shop can always not play the music”

That’s the entire point of the article you’re trying to argue with, genius. More and more places are choosing to do that just because the charges are putting too much pressure on them. As for your initial comment:

“if music is an integral part of their business model”

Well, clearly it’s not. A coffee shop doesn’t live or die based on the music it offers. But, musicians’ careers *do* live or die based on the exposure they can get, and removing venues for that exposure doesn’t do them any favours.

Do you even have a point any more? I know you’ve always argued with Mike “just because”, but you’re not making much of an argument when you’re making the exact same points he is in the original article.

Anonymous Coward says:

Re: Re: Re:4 Re:

paul, you miss the point. they can live without the music, but it is part of what creates the atmosphere that allows them to charge the excessive price for coffee. if there is another overpriced coffee shop that also has great music next door, you know which one is making the business.

my point is that they can choose not to have the music, but it puts them at a competitive disadvantage. just as importantly, it is incredibly cheap, especially if you look at it as a ratio of cost to units sold. they would spend hundreds of dollars on a system to play music, they would spent tons of money on paintings and other decorations for the establishment, why not pay a small amount to have the music that completes the setup? if they are dropping the music, it is likely that their business models were not very strong to start with. if running 6 music nights wasnt generating at least $1000 extra for that coffee shop, perhaps it is just better not to do live music.

ChrisB (profile) says:

Re: Re: Re:5 Re:

His point is that the coffee shops are choosing to live with out the music but the problem is with the Musicians. With all the venues that are stopping playing music the independent Musicians are losing money / opportunities to practice their craft. These performance rights groups are taking away these opportunities for new, up and coming artists, even if these new artists are playing their own music.

Where can a new artist play the music that they wrote if no place offers an Open Mic because these Performance Rights groups are charging too much money for the right to play music even if that music is not a part of said Performance Rights group?

Basin says:

Re: Re: Re:5 Re:

Funny, you seem to think the value of playing the music is much higher than the business owners do, hence their decision to just drop it. Why don’t you continue telling us how they should run their businesses?

Do you realize that the vast majority of coffee shop customers come in to get coffee and then leave? Why would they care if there is a song playing for the

Karl (profile) says:

Re: Re: Re:3 Re:

but the coffee shop can always not play the music.

…In which case, local musicians will be robbed of a place to play, and the PRO’s won’t make any money in any case.

That is, in fact, what’s happening. You think this is a good thing?

The only thing this will do is spur the creation of “illegal” venues, like peoples’ basements. While I have nothing against basement shows, they do put a kind of “glass ceiling” on your local scene.

Suzanne Lainson (profile) says:

Re: Re: Re:3 Re:

So what’s the problem about paying $7 a day? that’s about 2 Coffee’s.. Wow

My main interest is in finding ways for the songwriters to have more control. If they have joined one of the PROs, then they are giving permission to the PROs to collect on their behalf, in which case, I’d like to see a better accounting system so that every time a song is played somewhere, the member gets credit for it.

But for songwriters who haven’t joined one of the PROs, I’d like to see a way for them to allow their songs to be played for free if they give permission to do so. While that may have been a complicated affair in the past, now with digital technology, it should be easier to handle it either as a blanket agreement or venue by venue.

Mike C. (profile) says:

Re: Re: Re: Re:

From the article where you pulled the quote from ASCAP (yeah, no bias there…)

“said Newman, who also runs the Music in Melrose coffeehouse at Church of the Nazarene, which features monthly performances between September and May. “We couldn’t afford a thousand dollars a year [the price for licenses with all three PROs].”

Once a month performances at a church coffeehouse for 9 months out of the year. 9 performances = $1000?

The only thing they’re doing is killing the golden goose. No wonder their revenue streams are drying up.

Anonymous Coward says:

Re: Re: Re:2 Re:

it is like anything. he is trying to do a little something, in a market that requires a big something. plenty of places go without getting a liquor license, because the costs to obtain and maintain it are not within the realm of what their business can manage.

perhaps he could most readily justify the costs if he doubled the number of events, or if he looked at obtaining single event licenses one at a time. it is also assuming that they do no play any other music at any other time in this establishment.

Suzanne Lainson (profile) says:

Re: Re: Re:3 Re:

You mentioned church, does BMI or Ascap own the rights to musical hymns in the bible?

If the songs are in the public domain, then no, neither ASCAP nor BMI represents the songwriters. However, if the songs are more recent and the songwriters are members of ASCAP or BMI, those organizations can collect performance royalties on their behalf.

Anonymous Coward says:

Re: Re: Re:2 Re:

correction:

“Looking at potentially paying a total of $1,800 in annual fees to the three agencies and the possibility that he would be shut down permanently, Hopper discontinued music at Mocha Joe.”

he was looking at $150 a month, or less than $5 a day to operate a live music venue 3 days a week, plus recorded music at any time.

honestly, if he wasnt able to generate $5 of additional income from having music in the venue, then it was a bad business decision to go to live music. it is laughable that $1800 a year would be an issue, can you say “bad business models”?

Any Mouse says:

Re: Re: Re:3 Re:

That’s $1800 that isn’t there to pay employees, cover living expenses such as rent, utilities, and food, not to mention clothing and medical bills or emergencies. $1800 doesn’t seem like much for an entire year until you look at how close to the margin small businesses usually run.

So, without knowing how much PURE profit the business runs in a year? Not a great way to approach the topic.

Anonymous Coward says:

Re: Re: Re:4 Re:

but it should be $1800 of expense required to add more income. basic business, have $1800 of expenses, generate more than that as extra income, and you are all good. if you cannot make the money perhaps it is just a bad business model and you shouldnt do it.

plus remember, the gap between “recorded music” and “live music 3 nights a week” license is only about $900 by his own admission. so we are talking about an incredibly small number here, about $1 per performance day. holy crap business must suck if he cannot generate a single extra dollar of income with he live music.

by your logic, if he cant make enough selling coffee, he should get the coffee supplies for free too, or perhaps free electricity. it is all about bad business models, not about anything else.

Suzanne Lainson (profile) says:

Re: Re: Re:5 Re:

but it should be $1800 of expense required to add more income. basic business, have $1800 of expenses, generate more than that as extra income, and you are all good. if you cannot make the money perhaps it is just a bad business model and you shouldnt do it.

The problem is, and what we are talking about here, is that musicians want a place to play, whether or not the venue makes any money.

Musicians, particularly those who are just starting out, need places to play. They don’t want venues to stop offering themselves as musical spaces.

Right now house concerts don’t have to pay PRO fees, but there haven’t been other exceptions made yet. In some cases, the musicians might be able to play literally outside the venue, but not always. There are city regulations to contend with.

You have it upon the basic reality of music: for most venues and most performers it is a bad business model. But people still want to be able to play. I’m not talking about them trying to play other people’s songs. I’m talking about them wanting to find places to play their own songs. Perhaps it will have to be limited to private spaces.

Suzanne Lainson (profile) says:

Re: Re: Re:6 Re:

One of the other reasons some venues are reluctant to pay the fees is that they think they are doing the musicians a favor by letting them play rather than seeing live music as a money-making venture.

So if hosting music becomes more hassle than it is worth, then some venues just drop it.

Unfortunately in most towns there are more musicians wanting to play than there are places to play. Again, as I have suggested, perhaps the solution is to bill the musicians the cost of the PRO licensing. It means, of course, that you’ve got to have lots of musicians play there to spread out the expense, or you end up billing a few musicians most of the fees.

It’s a form of pay-to-play, which is common in cities where there are lots of musicians.

The economics of live music tends not to work in favor of most musicians. Most are lucky to break even when you factor in time, travel expense, etc.

Technopolitical (profile) says:

Re: Re: Re:7 Re:

“they think they are doing the musicians a favor by letting them play rather than seeing live music as a money-making venture.”

“The economics of live music tends not to work in favor of most musicians. Most are lucky to break even when you factor in time, travel expense, etc.”

Both points 100% perfect and true.

Anonymous Coward says:

Re: Re: Re:6 Re:

so if the musicians so want a place to play (regardless of the business implications) why not charge that $10 a night for the space? allow them to sell t-shirts and cds, whatever, and suddenly you have a business relationship that is good for everyone.

no matter what, a business shouldnt get involved in something that loses them money. having a musician in (instead of an extra table, or sports on tv, or whatever) should be done as part of a business plan. music after 6 pm brings in an extra 30 people a night, at $5 a coffee, making $150 extra income that wouldnt exist otherwise. an extra $450 a week (3 live shows), or almost 25 grand extra income. suddenly the $1800 music fee makes business sense.

after all, should they get the electricity free for the time the music plays? should their supplier give them free coffee?

it is all about business models, and even mike would likely agree that a money losing concept isnt a good business model.

Suzanne Lainson (profile) says:

Re: Re: Re:7 Re:

Charging the musicians to play at a venue is what a lot of venues have resorted to. The musicians don’t like pay-to-play, but when there is a shortage of venues and an excess of musicians, it comes to that.

music after 6 pm brings in an extra 30 people a night, at $5 a coffee, making $150 extra income that wouldnt exist otherwise.

You know, a lot of musicians can’t bring that many people in. That would be considered a good turn out at a lot of small venues.

I’m telling you, music is a tough business. It’s hard for venues to make money at this and it is hard for musicians to make money, too.

Now, from an economic point of view, it doesn’t make a lot of sense to be in the music business, which is something I’ve been saying in many of my comments on Techdirt. People do it because they love it, not because it makes anyone any money.

Anonymous Coward says:

Re: Re: Re:8 Re:

suzanne, i dont expect the artist / musican to bring in 30 people to a coffee shop. i am thinking more that it creates the sort of atmosphere where people from the neighborhood might come in casually to have a coffee and listen to whoever is playing. sort of an alternative to a walk in the park or taking the coffee home to read a book or watch tv. the idea is that the coffee shop is expanding its potential market at almost no cost (rent is paid, electricity is paid, etc), and perhaps they can push some extra coffee or give some people a reason to make this their “local” on a weeknight.

in the end, half of that license fee is for playing recorded music the rest of the time anyway, which means the actual collection agency fees per event are very low. if the business cannot justify a couple of dollars per event as a cost to set it up, there has to be something wrong with the picture business wise. mike is all about talking business models, why not address what is a truly simple issue, that this type ‘live music’ doesnt generate any real income for anyone.

sinrtb (profile) says:

Re: Re: Re:5 Re:

Most small businesses lose money for the first few year of their existence. So 1800 is just 1800 further in the red. No one is going to look at that and say yes I sell coffee i run a coffee shop and 1800 is worth spending on something that has nothing to do with either.

Maybe on the east coast you guys see lots of coffee shops with live music but on the west coast maybe 1 in 100 shops have a live band playing ever.

I have seen no explanation why any coffee shop would pay for live music over the many other things that 1800 a year would provide. thats three months pay of a part time employee, that employee can increase revenue. A band is a risk.

someone who's gettin bent says:

Re: Re: Re: Re:

yes i can back it up for me to promote and book shows…no matter where, i might add. I must keep each show below 200 people and can’t really make money. I started booking shows for local bands so they could have shows, not to get F-ed by ASCAP. to have decent shows I would be paying close to have my cover per show. and the money goes to the bands not me or the venues i have shows at. so to start the fee is 218 but more people is more money, more covers(which must be listed) MORE MONEY…MORE SHOWS=THEY GET MORE MONEY FROM THE BANDS…EVEN THE BANDS WHO ONLY PLAY ORIGINALS AND ARE NOT SUPPORTING ASCAP BMI OR SESAC LOOSE MONEY…..this is theft!

Richard (profile) says:

Re: Re:

if music is an integral part of their business model, cant they afford $1 a day for it? this is for a place that might have spent hundreds of dollars on speakers and such.

Just think about the implications if what you are saying here.

I’m sure that most people could afford to pay a dollar to the plumber every time they go to the toilet, after all their house costs hundreds of dollars in rent/mortgage payments, and going to the toilet is an integral part of your “living model”. Once you open up the doors to this kind of argument then the queue of people who could demand regular payments, simply because “you can afford it” is pretty much endless.

WammerJammer (profile) says:

Re: Re:

I have to agree. If a venue is going to allow musicians to play covers then they should pay the royalties. The problem with ASCAP, BMI and SESAC is they don’t ask for playlists, so they have no real way to track what is being played by any venue including Radio Stations. I speak from experience because I am on the board of directors of TakilmaFM.com which is a online Radio Station and is a good boy and has been paying royalties for 7 years every quarter and not once have any of the 3 powers that be asked for a playlist. When queried on this fact the response from ASCAP was and I quote: ‘You must have played one of our songs because we cover so many artists.’
So what are these places being billed for? I would demand a detailed invoice for the royalties for each song and then demand proof that this song was PERFORMED LIVE at my place of business.
Where are the bleeding heart lawyers to help the poor musicians through this crap? They are out there and someone just needs to do their homework and find them. Artists have free lawyers and an organization in place to help them. If you have ever sold any Artwork that you created you are entitled to free attorney services.
I also agree that the draconian methods that the big 3 are handling the collection of royalties is wrong and until people fight back then the abuse will continue.
They need to present a detailed invoice of services being billed instead of lawsuits and I would defend myself that way in court. No Judge in the world will deny you a detailed invoice if that is your only condition to settling the case and paying the bill.

hegemon13 says:

Re: Re:

Any why should a collection agency that has no affiliation with the performing artists be allowed to collect ANYTHING for their music and performances? Even venues that only allow artists to play original music have been commanded to pay up or close up.

Collecting money for work you do not have rights to and without the permission of the artist is the definition of commercial infringement. Why do they get a pass, whether it’s a dollar a day or fifty?

Reed says:

Let's just drop the facade already

Everyone knows these organizations have nothing to do with protecting artists. They have everything to do with making money and since their business model is built on a fantasy of intellectual property they seem to think they can get away with just about anything.

It makes me sick to think of all the money they make for doing nothing except acting as the troll under the bridge.

Anonymous Coward says:

Info from BMI site re licenses for bars, restaurants, etc.

http://www.bmi.com/licensing/ede/

As I read the fee terms, it at first blush appears to total $332 annually for business establishments of the type that regularly appear in articles such as to ones linked here.

Where “thousands” comes from for these types of establishments is not apparent, unless some important information has been omitted.

vivaelamor (profile) says:

Re: Re:

“As I read the fee terms, it at first blush appears to total $332 annually for business establishments of the type that regularly appear in articles such as to ones linked here.”

$332 annually is the minimum fee. Without occupancy figures I don’t see how you can assert that $332 is going to cover all concerned situations (establishments of which type, by the way?). If you divide $332.00 by the lowest cost live single performer ($3.00 – 1 night per week) then you have a baseline occupancy of 111 (fire-code occupancy, not number of seats). It is pretty easy to see how the fee can jump up fast if you have a regular band, or aren’t a small coffee shop.

Karl (profile) says:

Re: Re:

That link doesn’t actually show you the fees. Here is a link to a PDF that does:
http://www.bmi.com/forms/licensing/gl/ede.pdf

$332 is the minimum fee. The fee is actually calculated by the venue size, how many nights per week it has performers, and what type of performers they are.

A coffee shop that hosts “open mic Thursdays” would pay $4.05 per year, per occupant. If you have a capacity of more than 82 people, you’ll pay more.

And that’s just one PRO. You’ll also need to pay ASCAP’s license ($340 minimum) and SEASAC’s license ($284 minimum).

So, the minimum fees are about $1000 already. It will be more if you do live music more than once a week, have a higher capacity, charge a cover charge, play the radio or TV, etc. “Thousands” is not inaccurate.

texasbasedmusician says:

Re: Re:

I have been a touring musician for the better part of the last 10+ years. Have worked in the major venues in the Region, as well as the dives. The amount The Eagles Nest in Fort Worth TX, which is a very small local beer joint, was “strong armed” into paying by BMI, is over $5000 per year, roughly $416.66 per month. They also pay the artist between $300 and $1700 for a 4 hour show, depending on who the artist is.

I am licensed through BMI, and have been for several years. My last album produced 3 top 20 singles, one of which went #1 regionally. BMI has refused to pay the royalties they owe me, as well as making me well aware that they are my “sole” legal council for piracy, wherever my music is involved… for which they also declined to assist. Just this year I was made aware of several online sites “giving” my album away for free, I personally notified BMI and they responded with “we don’t care”. “Not our problem”. When I notified them that they owed me royalties for an entire quarter of radio play, they responded with “we haven’t tracked your music a single time on radio”… tell me oh great knowledgeable music guru… how in Hell does a song get to #1 on radio, and 2 other songs from the same album make the top 20, without getting radio play? I even supplied BMI with saved screen shot images of my songs on the top 20 chart. As well as on the very radio station website they claim did not play my music.

BMI is a con game… They are referred to in my business (the music business) as “The Mafia”. They are very very well known for strong arming local businesses who support people like me… the very guy you’re talking about. Save yourself from any further embarrassment by ending your flamboyant attempt at informing the rest of this website’s viewers of what you no nothing about. BTW… I DO have links to prove what i’m saying about BMI. I will gladly show you my contract with BMI, as well as my evidence showing the very music they proclaim is not being played on radio, is in fact being played on radio. I will also gladly show you BMI’s response when I informed them, they owed me royalties. BMI is a sham. They are The Mafia, and they run the music business… they continually shut down local businesses for not paying “royalties” which are supposed to go to …that’s right… ME! Not BMI… ME! For which they do NOT pay.

A Music Lover says:

Venues should Pay

ASCAP & BMI have been collecting these blanket license fees since the 1940s and are nothing new. The performing artists do not pay any fee, the annual fee is to be paid by the venue.
As artists are highly transitory and transient and consist of the professional, the part-timer, the hopeful, and the busker it is logical to collect royalty fees from the only entity that is physically established. Also, the corner coffeehouse and the local florist benefit just as does the cocktail lounge by establishing ambiance or entertainment to lure or keep consumers.

Richard (profile) says:

Re: Venues should Pay

As artists are highly transitory and transient and consist of the professional, the part-timer, the hopeful, and the busker it is logical to collect royalty fees from the only entity that is physically established.
So the argument is that you collect money because you can!

You haven’t made an argument that says that you should

fogbugzd (profile) says:

Forget about the cost of coffee, what about the musicians?

To me the main issue isn’t the atmosphere of the coffee house or how much the coffee costs.

Look at it from the musician’s standpoint. People like to share their music, even if they do not plan to turn professional. Those who do want to turn professional need performing experience like they used to get in small local venues.

From my youth, I remember a lot of shops basically allowing people to perform there as a favor to the musicians. The shops didn’t always try to capitalize on the music. Musicians performed and got valuable feedback from the audience. People who performed a lot became better musicians; I saw it in a lot of my friends.

This is what has been killed off. It was easy to have a microphone, and amp or two, and a few feet of floor space. People didn’t worry about whether the music was original or covers.

It seems to me like one easy solution is to set a minimum threshold below which licensing is not required. The kind of shops I remember seemed to have capacities of around 200 people, so maybe something like 250 people would be a reasonable threshold if you include employees. Put the burden on the collection society to prove that the threshold was violated in order to reduce the intimation factor.

The supporters of the collection societies seem to think the fee is $1 a day. If we assume that, we are really talking about pretty small amounts of money that would be lost to the really small venues. Encouraging a thriving business in the small venues would probably end up creating a thriving music scene which would quickly grow to larger venues. If the fees are not too high once passing the 250 threshold, it is quite likely that the number of larger, paying venues would also grow. The collection societies might not get rich off of this system, but musicians and the music industry as a whole would definitely be stronger.

As long as the music isn’t so bad that it chases off customers then everyone wins, except maybe the collection societies. In theory the collection societies should be collecting money and passing it on to the songwriters. If we have a threshold, the writers would not get paid for performances in small venues. However, if the collection society kill off the small venues, they are not getting paid there anyway. Besides, there is plenty of evidence that the collection societies are not very good at getting money to the artists, so only the collection societies themselves would lose money. Their expenses would go down, however, since they would not have to chase collections from little shops.

Trav says:

Silly

Silly we live in a world where, actors and Musicians are some of our wealthiest. I do not care a two hoot about the movie or music industry (they are rich as %$#%!.)
If they really were a struggling industry then maybe i would care.
One day maybe we will live in a world where our greatest minds are the highest paid, though doubt it with how our economies work.

Karl (profile) says:

Re: Re: Silly

And not a one of them will ever see a penny from a PRO.

The way royalties are calculated by PRO’s is this: they take the money, and divide it up between who is most popular in a specific area. So, if you’re in Boston, the songwriters for Aerosmith (for example) get those royalties, even if not a single person in Boston covers an Aerosmith song.

Of course, the vast majority of musicians are not a member of any PRO. Yet each time they play a venue, the PRO’s make money off that venue.

The whole thing is set up to funnel money from struggling musicians, into the pockets of already-popular songwriters.

And any venue who won’t – or can’t – pay for this scam, is forced out of business.

Anonymous Coward says:

Re: Re: Silly

Or, as is printed on t-shirts, “Why yes, I am an actor. Can I take your order?”

A actor, even a brilliant one, has about the same chance of making it on the big screen or on Broadway as he/she does of making it in the NBA. Abject poverty, coupled then with moving on to get a job outside of acting, is the unfortunate rule.

Richard (profile) says:

Re: Re: Silly

Only a established artists are filthy rich. They are cutting room for people to replace them. Poor starving musicians and actors are way more common.

There will always be poor starving musicians and actors. No matter what legal/copyright regime you institute, and even if the record labels and studios suddenly turned into fairy godmothers it would have no effect – because there is an effectively infinite supply of hopefuls and a better deal would simply encourage more people to have a go.

Andrew F (profile) says:

Do you have to pay?

I remember a post about a collection agency forcing an owner to pay even though he had signed agreements from the musicians that they would only play songs they owned the rights to themselves.

Is that actually the law? I’d love to see this challenged in court. The proposition that any musician who performs in public is considered a cover band by default seems indefensible to me. And if it is indefensible, then coffee shops can simply make the artists sign indemnity agreements. Problem solved!

vivaelamor (profile) says:

Re: Do you have to pay?

“I remember a post about a collection agency forcing an owner to pay even though he had signed agreements from the musicians that they would only play songs they owned the rights to themselves.”

http://www.csmonitor.com/The-Culture/Music/2009/0109/p14s01-almp.html was the original story.

“Is that actually the law?”

No, of course it isn’t. If you read the BMI FAQ you will get the distinct impression that they know they are bluffing. The licensing schemes are a means to an end, and that end is the concerned copyright laws. If none of their copyrighted material is being used then they have no legal basis for any claim. Just apply the principles from the file sharing cases to this situation; they have to prove infringement for file sharers and they would have to do the same here.

The issue of course is that establishments often find it cheaper to pay than to put up with harassment from the organisations involved. What establishments need is an organisation to fight their own interests.

Mitch says:

ASCAP & BMI are good

sorry, but i hate to be a naysayer here, but ASCAP and BMI provide a valuable function to help protect valuable performance rights for songwriters. The fees for basic coverage for a coffee house or other locations are usually very reasonable and small.

also, it is helping to support artists/songwriters. More often than not, music will be played in an establishment, but no music royalties will be paid at all, but it is good to support, especially now that revenues are dropping because of illegal filesharing and cause people buy singles instead of albums.

important thing is that it is the right thing to do, instead Techdirt spins it like it is evil.

just ridiculous.

vivaelamor (profile) says:

Re: ASCAP & BMI are good

“sorry, but i hate to be a naysayer here”

Why be sorry? If it’s your honest opinion.

“ASCAP and BMI provide a valuable function to help protect valuable performance rights for songwriters”

Where’s my band of thugs to extort money for all the work I didn’t think to get paid for?

“The fees for basic coverage for a coffee house or other locations are usually very reasonable and small.”

Compared to a kick in the teeth, perchance?

“also, it is helping to support artists/songwriters. More often than not, music will be played in an establishment, but no music royalties will be paid at all, but it is good to support, especially now that revenues are dropping because of illegal filesharing and cause people buy singles instead of albums.”

I’m sorry, I was being too harsh on you. Have a cookie.

“important thing is that it is the right thing to do, instead Techdirt spins it like it is evil. “

Who do you have to pay for use of ‘The Right Thing’ (TM)?

“just ridiculous.”

Now we agree.

Karl (profile) says:

Re: ASCAP & BMI are good

You assume that those royalties will actually be paid to the songwriters. You would be wrong about that:

The remaining net performance fees are divided among the participants of the same PRO, depending of the amount of their respective radio and TV air play.

– Music Law: How are royalties calculated?

Since most songwriters (especially those in smaller venues) do not get played on the radio (much less TV), they will never earn a penny from their PRO. Even assuming they’re members, which is unlikely.

Also, consider that venues cannot opt out of this system. They cannot, for instance, allow only original music, or music by someone not on a PRO (or even a specific PRO). They must pay fees to all three PRO’s, or be shut down.

Karl (profile) says:

Re: Re: ASCAP & BMI are good

Oh, here’s one other thing to consider.

Whenever you play a venue that charges a cover, the venue deducts nightly operating expenses out of the door money before paying the bands. If those operating expenses aren’t covered by door charges, the bands don’t get paid. (This happens quite a lot.)

Higher licensing fees = more operating expenses, hence less money going to the bands themselves.

Anonymous Coward says:

As someone who knows the owner of a local business, I know that it’s not a “dollar a day” type thing. There are 3 entities that constantly berate my friend, each one demanding around $2,000/year in order to allow bands play covers. She can’t afford that, even in a payment plan. So she’s had to cut several of her live music venues because the only thing they DID play was covers.

It’s sad really, because most of the artists don’t know this is going on. They don’t realize that the record labels they sign with have hired these thugs to basically destroy the places where the artists themselves probably got their start.

Suzanne Lainson (profile) says:

I'm not happy about the situation , either

There are two aspects of the ASCAP/BMI/SESAC situation I’m not happy about:

1. There is no way for a songwriter to give permission to a venue to play his/her songs without the venue having to pay a royalty fee, even if the songwriter isn’t a member of ASCAP/BMI/SESAC. A songwriter can record music and give it away, but can’t give away the performance of those songs in a public venue because as soon as public venues start playing music, ASCAP/BMI/SESAC want a blanket license. There should be a way for these venues to deal with songwriters on an individual basis and obtain permission from each one.

2. Most members of ASCAP/BMI/SESAC never get paid when their music is performed. Since no one is keeping track of what music is getting played in each venue, these organizations don’t pay each member based on plays. It would at least be more fair if every time a member’s song was played somewhere, the member was credited a fraction of a cent for that play.

So this is what happens. Songwriters are encouraged to join one of these organizations so each organization can claim they represent so many songwriters and therefore any venue playing music is likely to be playing music by member songwriters. Bu then the member songwriters never see any money from the organizations, even if they are playing 200 gigs a year. No one is keeping a play list, so no one knows that their songs are being played.

It might be better for songwriters who aren’t expecting lots of radio play to not join ASCAP/BMI/SESAC because currently the organizations are saying they are collecting on their behalf, but in reality the money isn’t going to the members. Then at least the songwriters can go into venues and if they play only original music, they can legitimately claim no royalties need to paid on their behalf.

I’d like to see a new organization that represents songwriters, but does not collect money from venues on their behalf. Perhaps then there can be a group of songwriters and venues that work together to provide license-free venues. I don’t think such an organization it will actually make a difference, because ASCAP/BMI/SESAC are still going to claim that any place playing music must be playing music by at least one of their members, but perhaps it will get people talking about this.

The Folk Alliance people are doing a good thing. They have been able to set up system where house concerts are exempt from PRO fees and hopefully they can work out a deal for small music venues as well.

House Concerts and PRO Fees

And then, once a reasonable licensing system is set up, the PROs (performing rights organizations) must find a way to account for every member song played at any venue or on any radio station that is already paying licensing fees so that the members can actually benefit. Even if the members are only owed tiny amounts, they should be able to see how much is being collected on their behalf.

Karl (profile) says:

Re: I'm not happy about the situation , either

The only thing I disagree with is this:

Then at least the songwriters can go into venues and if they play only original music, they can legitimately claim no royalties need to paid on their behalf.

Under the current licensing system, this is not possible. The venue has to pay the PRO’s regardless.

Otherwise, you’re completely spot-on.

I actually didn’t know about the “house concerts” exemption, that’s very good news. I’d love to see smaller venues become exempt as well.

Suzanne Lainson (profile) says:

Re: Re: I'm not happy about the situation , either

Under the current licensing system, this is not possible. The venue has to pay the PRO’s regardless.

I know that. I was talking about my ideal situation.

If someone wants to use your song in a TV show or a movie, you can give permission for the producer to do that without paying you. (The producer still has to pay the PROS when it is broadcast. But at least the payment is made in your name.) But you can’t go into a venue and give the venue permission to play your music without paying a fee. I think there should be a way to do so.

If you have signed an agreement with a PRO, then it’s understandable that a PRO will try to collect on your behalf. But there should be a way for them not to collect on your behalf if you aren’t a member.

Suzanne Lainson (profile) says:

Re: Re: Re: I'm not happy about the situation , either

Another way for me to put this:

This should be a way to opt out of the system if non-member songwriters are performing in venues that only play music by non-member songwriters.

Right now there is no such system. The argument has been from the PROS that so many songwriters are members, that a venue will inevitably play songs written by members. The burden of proof falls on the venue to show otherwise.

With copyright laws, the copyright holder is free to make his/her content available for free. The laws exist, but the owner can state the price.

With music performance, we don’t have an opt-out system, but a number of songwriters who play the coffeehouse circuit would like to see such a thing. They’d rather have venues to play in than to have a collection agency charging the venues.

The current alternative is the house concert circuit, and that is a good way to go, although there aren’t enough people hosting house concerts to make up the difference. Another alternative might be for a rotating circle of jam sessions in non-traditional locations so there isn’t any place from which for to collect. Also, many churches are already paying fees to ASCAP/BMI/SESAC, so they may be a good place to host concerns and jam sessions. And presumably rec centers are paying fees already, since they have music playing (though not usually live music), so using them for live music, might work.

Technopolitical (profile) says:

Re: Re: Re:2 I'm not happy about the situation , either

Suzanne, you have rapidly become one of my favorite writers, ( as I told in our private emails, I happily envy your writing skills, and reading you helps me to become a better writer).

You have summed up out “copyright” and “public performance” debate here PERFECTLY.

A +++ / A+++

Karl (profile) says:

Re: Re: Re: I'm not happy about the situation , either

If someone wants to use your song in a TV show or a movie, you can give permission for the producer to do that without paying you. (The producer still has to pay the PROS when it is broadcast. But at least the payment is made in your name.)

Is this true? My understanding is that TV and movies don’t pay a statutory rate, they pay a rate that is negotiated on a per-song basis. For example, a movie studio would sign a contract with the specific copyright holder if they want to include a song in the movie. They wouldn’t go through Harry Fox or whatever.

So, if you (as the copyright holder) gave a movie/TV show permission to use your song, they wouldn’t pay the PRO’s, since they don’t pay statutory fees.

But none of my music has been used in a major motion picture, so it’s entirely possible that I’m wrong. I hope so – though not major, some of my music has been used in small indie films, and I really hope the PRO’s don’t come after them.

cousin b (profile) says:

re; BMI, ASCAP and NAB

Here’s what’s true about this controversy-

The minimum of over $300 instantly modified by details that raise it quickly, times 3 agencies expecting it, even if a venue limits itself to original music.

The ‘PROs’ are going after venues that were considered below the threshold, as in, yes, there used to be one. A 50 seat coffeehouse with a guy hosting an open mic for free or even a small restaurant with, say, a jazz trio or folk duo was exempt at least in practice if not actual literal policy.

This is a recent push by the licensers to capitalize on what they see as lost musical revenues by music users, which is, of course, theoretical bean-counting strategy applied completely out of context.

To show you how greedy they are, the ‘PROs’ are backing a bill in Congress- The Performance Rights Act (PRA) to make royalty payments mandatory for all the local and non-profit radio broadcasters that used to be exempt.

Just like the coffeehouses and home concerts. This opens the door to eventually charge every business with a radio playing out loud.

Meanwhile, broadcasters are fighting back with nuclear weapons. The NAB is backing the ‘Local Radio Freedom Act’ (LRF), which would banish any new royalties for any ‘sound recording user’ not already paying under previous guidelines. Not just radio- stores, malls, restaurants, small tv stations.

This will immediately lead to lawsuits from major users for unfair exclusion.

Then, the real royalties that the PROs are there to collect, mainstream radio, tv and film, will disappear as each industry sues to be exempt. As a BMI member who’s done TV work, these are the royalties I joined for and they’re endangered.

Meanwhile, NAB says radio shouldn’t pay because it publicizes musicians for free and, besides, only the rich ones and big labels get the money.

Since radio has long restricted airplay to nationally programmed services and hit acts, this is a paradox at best.

BMI et al are pushing for more revenue by ‘taxing the peasants’ because they can’t monitor internet playback and are desperate to replace the funds they perceive as lost in the new medium.

The broadcasters want to lose the baggage of paying royalties altogether, and cost-cutting at small business levels is foolproof defense against those ‘evil, selfish, millionaire rock stars’.

The PROs push is making this a walk in the park for broadcasters.

Oh, and the city of Las Vegas is also pushing all venues and anyone who performs at all or sells a CD to have a business or performing license- even amateurs who play at open mics.

Meanwhile, we are lucky to be paid the same $50 Ray Charles made in 1949.

But, it’s all okay because you can ‘choose not to have live music’ and it’s a moot point.

Because why? Performing music at all anywhere is such a privilege that we should gladly pay to do it?

Well, AC, once we’re gone, there’s only you left to gouge. Asked a Brit lately about the ‘BBC TV license fee’?

Ready to pay for the stereo in your car?

Karl (profile) says:

Re: re; BMI, ASCAP and NAB

the ‘PROs’ are backing a bill in Congress- The Performance Rights Act

I haven’t followed this in a few months, but as far as I know, this is not what the PRA is about.

Normally, radio stations have to pay only the PRO’s. That is, they pay royalties to songwriters, and not to the performers.

The PRA would require radio stations to pay royalties to the performers as well. By “performers,” you should read “mechanical copyright holders,” i.e. record labels. They are the ones pushing this bill.

Internet radio already has these royalties. The major labels were able to push this through by claiming that internet radio, being digital, was “piracy.” Amusingly enough, they are now also claiming that playing music on the radio is “piracy.”

As far as I know, the PRO’s are against this bill, same as the radio stations. But I haven’t been following the bill, and if it allows the PRO’s to collect from more people, they very well may have changed their tune.

cousin b (profile) says:

re; addendum- house concerts

The city of Las Vegas requires house concerts to have entertainment licenses and all performers to have business/performing license, additional license if you sell CDs.

$125 or more upfront, then $25 per $12000 yearly gross income twice a year.
So, $50 per year to play your originals at open mics or house concerts, more if you sell CDs.

The biggest problem here- no distinction between amateur or pro players or ancillary or featured music.

Suzanne Lainson (profile) says:

What would happen if we had play-ins?

It would be interesting if groups of non-member songwriters would appear at venues that don’t play music and don’t pay PRO fees and start playing their own music (either live or via a music player).

What would happen if songwriters appears at venues and started to play? Would the venues be held responsible for songwriters who decided to play their own material on their own?

I wonder if an organized, non-violent protest movement would shake things up a bit?

Or what if the musician just decided to recite his own lyrics and the audience spontaneously hummed along? Is that a performance, or is that a poetry reading accompanied by humming?

Suzanne Lainson (profile) says:

And when people say live music is booming ...

For those of you who are saying that as recorded music sales are going down, live music is booming, you are often citing statistics provided by various performance rights organizations.

What that can mean, as some have pointed out in this discussion, is that the PROs are getting more aggressive in collecting royalties. So it isn’t always a case of more people going to shows. It can sometimes be a case of more venues being hit up for licensing fees. So look carefully at the statistics before proclaiming everything is rosy.

cousin b (profile) says:

re $7

Yeah, $7 a day sounds like no big deal when you phrase it that way. Neither does $10. Or $15. Or $20 with the right contrasting point.

But $150 per month is starting to sound more like a utility bill. $1800 per year is more like a major expense than daily spare change-

– when you’re talking about these smaller businesses now being targeted.

I’m not hearing any clubs with stages or regularly paid bands complaining, even the lowballers.

I’m seeing a lot of formerly exempt amateur and beginner-level free gigs being targeted by the city as well as the PROs and dropping live music altogether.

$7 a day adds up fast. It’s nothing to sneeze at.

Suzanne Lainson (profile) says:

Here's what one group of guys did

I don’t know the legalities of it, but I knew of a group of guys who lived in the warehouse district of Denver. They would throw parties, have everyone chip in $10 each, and that would cover the alcohol and there would be live music.

Technically it was not a music venue, and technically they were not selling tickets or alcohol. It’s similar to the house concert concept.

I don’t know if ASCAP/BMI will come calling if you routinely throw parties, have everyone “donate” a certain amount which gets shared between the people providing the food and the entertainment, but it might be a way to get around the licensing issue if your city doesn’t come after you for whatever legalities there are about hosting private parties.

Karl (profile) says:

Re: Here's what one group of guys did

I know of dozens of people who have done exactly what you’re talking about.

Usually they get shut down by the police. ISD (Inspectional Services Department) has to approve of every venue, commercial or not. If you’re not up to code, they will shut you down, toot sweet.

And I’ll bet that the people in that warehouse district weren’t actually living in a space that is zoned for occupancy. If that’s the case, they could also be kicked out. (This happened to a whole bunch of people in Providence recently.)

I’m not just talking about private lofts, either. Here in Boston, the art galleries had to stop hosting live music, because they didn’t have the required licenses, or weren’t up to code.

These spaces are all “illegal.” I personally love these spaces, and love playing in them, but you can’t depend on them if you want a stable music scene.

Suzanne Lainson (profile) says:

Another option

Perhaps it would be possible to set up a music co-op where a group of musicians/bands run the venue, are allowed to play there, and they split the costs of annual PRO fees. Then they are free to play whatever songs they want, whether or not they have written them themselves.

Or venues can openly pass the fees on to their customers. Have a fee tacked on to every bill or have a collection jar at the door with a breakdown saying, “In order to have music in this venue, we are charged this much daily from ASCAP/BMI/SESAC.”

Again my issue with the fees are not the fees themselves, but rather that those fees don’t reach most member songwriters even when they are performing frequently, and since the fees don’t get to them, I think there should be an opt-out system for non-members.

Technopolitical (profile) says:

Re: Another option

“Perhaps it would be possible to set up a music co-op where a group of musicians/bands run the venue, are allowed to play there, and they split the costs of annual PRO fees. Then they are free to play whatever songs they want, whether or not they have written them themselves”

It would be great ,, but most musicians are too stoned to organize this type of thing. ( thank G-D !!)

So we are stuck with bar owners,, who tend to be just a notch below record companies , on our “who we really do not like” lists.

The one exception , is a not so little pub on Bleecker Street in Greenwich Village , called the “Red Lion.”

The Original Owner is a pretty fair amateur musician, and he , and the current owner ( friends with each other) , have always put musician interests at the core of the bar “philosophy “. It is 100% a for profit , “lets get rich” place.

Musicians actually build much the bar , physically– alot of musicians do light construction as their “strait job”. [ My job was making sure the beer taps work properly. I still test them out a few times a year– till my $$ runs out. :)]

———
The Red Lion
http://www.redlionnyc.com
151 Bleecker Street
New York, NY 10012-1403
(212) 260-9797

————

there are i few other musician owner type bars, My sis knows more who and where than i do

Karl (profile) says:

Re: Another option

Or venues can openly pass the fees on to their customers.

That’s actually what most venues do. They take their operational costs out of the door money, and the PRO fees are counted as operational costs.

I think there should be an opt-out system for non-members.

Personally, I think the fact that you’re not a member should be enough of an “opt-out.” PRO’s should only collect fees from venues that perform songs by their members. It should be the burden of the PRO’s to prove that they are.

The vast majority of musicians are not a member of a PRO, and most of the ones that are, do not get any money from their PRO. Yet the PRO’s keep collecting money, and keep shutting down venues that they can’t collect from.

We can play the “they should do this” game forever, but the only way the system will change is if all of us (especially musicians) work to change the law.

Suzanne Lainson (profile) says:

Re: Re: Another option

The vast majority of musicians are not a member of a PRO, and most of the ones that are, do not get any money from their PRO. Yet the PRO’s keep collecting money, and keep shutting down venues that they can’t collect from.

We can play the “they should do this” game forever, but the only way the system will change is if all of us (especially musicians) work to change the law.

All the songwriters I know do join ASCAP, BMI, or SESAC. It’s usually some of the first advice they get from music industry professionals.

However, after I began to understand the PROs and that for most songwriters, there isn’t a benefit, I began to think that there’s no hurry to join. Unless you anticipate having significant radio play or having your songs placed in TV or films, then take your time before joining.

And since the argument that the PROs offer to venues is, “We represent so many songwriters that you must be playing at least a few of our member songs,” then if fewer songwriters join, eventually that argument doesn’t hold up.

The other issue that I thought about, during this discussion, is that since there are three performing rights organizations in the US, and each represents different songwriters, then the licensing costs shouldn’t have risen each time a new PRO was added to the mix. The amount of time a venue can feature music is limited by the hours in a day. So it doesn’t matter how many PRO organizations there are representing an increasing number of songwriters, each venue cannot play more music (an average of one song every three or four minutes, unless the venue has multiple rooms playing different songs). Add more organizations, add more songwriters, and the total licensing amount each venue has to pay should still remain the same, to be divided by the PROS and their member songwriters.

It doesn’t make sense, for example, for ASCAP to say, “Pay me $300 a year,” and for BMI to say, “Pay me $300 a year,” and for SESAC to say, “Pay me $300 a year,” because at any given moment, the venue is playing one song by one songwriter (actually many songs have multiple songwriters, but the fee per song should still be the same). If another PRO gets formed and starts representing another batch for songwriters, do they get to come in and ask for $300 per year, too? (Presumably there is some sort of authorization system that legitimizes PROs in the US, but I’m not up on the history of these things.)

I want to point out again, what I am lobbying for is one of three things:

1. Every member songwriter actually gets credit every time his/her song is played somewhere.

2. Or songwriters can choose not to join and are free to allow venues to play their music without having to pay royalties. And there will be a mechanism to allow venues to play only non-registered music and therefore escape having to pay blanket licensing fees.

3. Or exceptions are made for music venues that make little or no money from music, but provide opportunities for performers to play.

Musicians need as many venues as possible, so we need to find ways to encourage this.

Karl (profile) says:

Re: Re: Re: Another option

In general, I agree with you. I just think we disagree about the right methods to use.

#1 is impossible on a practical level, at least for live venues. I mean, that’s why statutory rates were introduced in the first place.

#2 and #3 are good ideas, but are currently impossible under the law. Musicians and venue owners could go ahead and do them, and the PRO’s would just say, “So what? Pay us.”

I can think of only two ways the situation will change:

1. We change the current copyright laws.

2. The members of the PRO’s raise a stink. If enough of their clients complain, or threaten to quit, the PRO’s will probably back down.

I think the second option would be the most effective. I suspect lots of artists would be on board with that, if they were made aware of the situation. For example, Bruce Springsteen already is.

JEDIDIAH says:

Re: Re: Re:2 The talent should always get the money.

If you are unwilling to pay the talent, you should not have a right to charge anyone else for a creative work. So, any performance licenses should only be legal so long ASCAP and friends are willing to do everything it will take to make sure that all relevant parties get their proper cut.

I suspect these small venues that are being squeezed out simply aren’t worth ASCAP’s effort in this regard. Rightfully, they should be exempt from licensing.

The PROs are essentially stealing from the songwriters.

Karl (profile) says:

Re: Re: Re: Another option

One more small point:

All the songwriters I know do join ASCAP, BMI, or SESAC. It’s usually some of the first advice they get from music industry professionals.

If you’re a musician by trade (that is, your income is derived solely from music), then yes, absolutely you should join a PRO, and most will.

But the vast majority of performing musicians are not musicians by trade. They do it to have fun, and maybe score a couple extra bucks on the side. Very few of these musicians are, or ever will be, a member of a PRO.

And these musicians make up the bulk of the performers at most venues. If a venue has a capacity of less than 250 people, it’s a fair bet that they’ll almost never book someone who is a member of a PRO. According to Online Gigs, that is over 70% of all venues in this country.

Despite this, I’m not against PRO’s in general. I think they’re doing an okay job for the most part (they’re certainly better for artists than the majors are, for instance). I don’t even have a problem with compulsory licenses, in cases where music is the primary source of income for a venue.

But when they start shutting places down, then I have a problem with them. When they do it in the name of “protecting musicians,” then I have an even bigger problem with them.

I think we’re in agreement on this, I just wanted to be clear.

Also, if you could convince your songwriter friends to write letters of protest to their respective PRO’s, that would be immensely helpful. (The ones I know either aren’t with PRO’s, or don’t need convincing.)

Technopolitical (profile) says:

Re: Re: Re:2 But the vast majority of performing musicians are not musicians by trade.

KARL :But the vast majority of performing musicians are not musicians by trade.

Me : yes and no.

Most any musician would quit their strait job , if the right music deal came along.

I know many full-timers who do well less than $30,000 a year , even much lower, they even get medicaid and etc.,, if eligible .

Suzanne Lainson (profile) says:

Re: Re: Re:2 Another option

If you’re a musician by trade (that is, your income is derived solely from music), then yes, absolutely you should join a PRO, and most will.

But the vast majority of performing musicians are not musicians by trade. They do it to have fun, and maybe score a couple extra bucks on the side. Very few of these musicians are, or ever will be, a member of a PRO.

For those who aren’t familiar with the PROs, they are for songwriters. Musicians who aren’t writing their own songs wouldn’t get any benefit from joining. If you are playing in a band as a member but not a songwriter, or if you are performing other people’s songs, the PROs aren’t for you.

And traditionally it has been the songwriters who have made the most money in music. If you sing or perform on a recording, but don’t own the rights to the songs, then you don’t make money from performance rights, mechanical rights, synchronization fees, etc.

Karl (profile) says:

Re: Re: Re:3 Another option

If you sing or perform on a recording, but don’t own the rights to the songs, then you don’t make money from performance rights, mechanical rights, synchronization fees, etc.

Well, that’s not quite true. Performers do usually earn a percentage of the mechanical royalties (this is label-speak for “album sales”). But their advances (which have to pay for recording, promotion, tour support, etc) have to be paid back before they can earn any royalties. Even at the height of CD sales, 90% of musicians on a major label never made enough in mechanical royalties to pay back their label debts.

You’re right about performance royalties. I don’t know about synchronization fees (I expect this depends on each contract). I do know you’re absolutlely right that songwriters make a lot more money than people who perform others’ works.

Suzanne Lainson (profile) says:

Re: Re: Re:4 Another option

Well, that’s not quite true. Performers do usually earn a percentage of the mechanical royalties (this is label-speak for “album sales”).

Performers only earn mechanical royalties if they are the songwriters of the songs. Songwriting and performing are two separate worlds in terms of music publishing.

Performance royalties are administered by Performance Rights Organizations such as ASCAP, BMI, and SESAC. And now SoundExchange deals with performance royalties for songs streamed or played on the Internet. Some of those royalties go directly to the performers on the album. But this is a new thing. It was set up to benefit labels and recording artists rather than songwriters.

Traditional performance royalties are in reference with what ASCAP/BMI/SESAC deal with. They are for live performances of a song, and also the song played on standard radio, TV, movies, commercials, etc. They have everything to do with the music and lyrics and apply no matter who performs or records the song.

Many recording artists are not the songwriters and get no percentage of performance royalties.

Karl (profile) says:

Re: Re: Re:5 Another option

Performers only earn mechanical royalties if they are the songwriters of the songs.

No, that’s not true. Recording artists do as well. In fact, traditionally this was their only source of royalties.

“A mechanical license refers to permissions granted to mechanically reproduce music onto some type of media (e.g., cassette tape, CD, etc.) for public distribution. […] The mechanical royalty is paid to the recording artist, songwriter, and publisher based on the number of recordings sold.”
How Stuff Works: How Music Royalties Work

“Recording artists earn royalties only from the sale of CDs and tapes and, as will be seen later, from sales arising from digital rights.”
– Wikipedia: Royalties

If this weren’t true, then many pop stars (who don’t write their own material) would earn absolutely no royalties whatsoever.

If you’re both the performer and the songwriter, typically you’ll have a “controlled composition” clause where you only earn 75% of the mechanical royalties (the logic being that you’ll also be making royalties as a recording artist).

But artists’ mechanical royalties are based on albums sold (unlike songwriters’ statutory mechanical royalties, which are based on albums produced). And rarely, if ever, do the sales royalties cover the artists’ advances.

That’s why 90% of recording artists on a major label will never make any money from the sale of CD’s.

Suzanne Lainson (profile) says:

Re: Re: Re:6 Another option

Here’s what I was talking about. It goes to the songwriter and the publisher.

Music Publishing – An Overview: “Mechanical Royalties
The term ‘mechanical royalties’ initially referred to royalties paid whenever a song was reproduced by a mechanical device (remember that one of a copyright owner’s exclusive rights is the right to authorize the reproduction of their work). The term ‘mechanical royalties’ was applied to the reproduction of songs in music boxes, player pianos rolls, and later, phonograph records. This term is still used, and ‘mechanical royalties’ now refers to royalties paid for the reproduction of songs on CD, DAT, audiocassette, flexi-discs, musical greeting cards, and other devices sold on a ‘per unit’ basis.

The amount of money a record company must pay for a mechanical license is generally set by the Copyright Royalty Tribunal. This rate is sometimes referred to as a ‘statutory’ rate. The current statutory rate through December 31, 2007 is nine and one-tenth cent ($.091) per song. This means that a single song can generate up to $.91 cents for every 10 records sold. Unfortunately, it is record industry custom to pay only 75% of the statutory rate to new or moderately successful songwriters. This means that a typical songwriter without enormous clout would generate a little more than 68 cents for every 10 records sold. After the publisher collects this money from the record company and takes its share of the income, a songwriter may receive as little as half of this amount.

Suzanne Lainson (profile) says:

Re: Re: Re:6 Artist royalties vs. mechanical royalties

What a label pays the band or artist under contract is an “artist royalty.”

A “mechanical royalty” is what is paid the songwriter and publisher for use of the song on a record.

KnowTheMusicBiz.com – An Overview of Artist Royalties in the Music Business by David Rose
Royalties from Sales – Royalties from sales are royalties paid by the record company to the recording artist based on sales from their music. These royalties are typically based on a percentage of sales, 10% for example. The calculations used for determining royalties from sales can be quite complex and are a negotiated as part of the artist’s overall recording contract with the record company. Payments of royalties from sales to the recording artists do not start until the record company has recouped all the expenses they incurred for making, promoting and marketing the record. Recoupable expenses can include the costs of recording, producing, mastering, manufacturing, promoting and marketing the record, tour support, video production and any other related expenses the label includes as part of the recording contract.

It is quite common for a recording artist to never receive royalties from sales (unless, of course, their record is a huge hit) due to the way royalties from sales are structured and the high costs for the record label of getting a new record to market.

Mechanical Royalties – Mechanical Royalties are paid to the songwriter by the record company for the right to reproduce songs for public distribution. Mechanical royalties are paid on a per song basis for physical sales (CDs, Albums) and permanent digital downloads (iTunes).

Suzanne Lainson (profile) says:

Re: Re: Re:8 Artist royalties vs. mechanical royalties

Here’s another quick breakdown. The artist royalty is part of the deal that the performer and the label sign. The mechanical royalty is the amount that is paid to the songwriter and publisher and it is currently 9.1 cents per song per CD or digital file.

How Do Music Royalties Work? | IndieHipHop.net:
Artist Royalties: Are monies paid by the label/company that releases the song.
Mechanical Royalties: Are monies paid by the label/company to the writer of the song. The performer and writer are sometimes the same person.
Performance Royalties: Are monies paid to the songwriter of the song. These earnings are collected from public performances of the song and broadcasts such as radio and television play. Performance Rights Societies (ASCAP, BMI, or SESAC), collect these fees and distribute the earnings to the writers.
Synchronization Royalties: Are monies paid to the songwriters and publishers of a song for use in movies, commercials or TV shows.

Karl (profile) says:

Re: Re: Re:8 Artist royalties vs. mechanical royalties

That’s a good video, and of course Don Passman would know more than either of us.

I think the confusion arises because in many sources, artist royalties are also referred to as “mechanical royalties.” They’re computed differently, obviously, but based on the same royalty source (the royalties gained from mechanical reproductions), so it’s no surprise that they could be lumped in together.

I once filled out a standard recording contract with a tiny label (needlessly – long story), and I think in that document artist royalties were also referred to as mechanical royalties. But I’m just going off of memory here, so I’m probably wrong.

Suzanne Lainson (profile) says:

Re: Re: Re:9 Artist royalties vs. mechanical royalties

Music publishing is very confusing, which is why I’ve tried to cite what I hope will be useful info.

I worked with an artist who was offered a publishing deal, so I put myself through a cram course in publishing, trying to become as familiar with everything as I could.

And I’ve handled contracts to use songs on TV shows and in film, so again, I wanted to know what is what.

And I’ve gotten licensing permissions from Harry Fox for an artist who included two covers on one of her albums.

As for ASCAP/BMI/SESAC, I started to get more familiar with them for two reasons:

1. I was reading about venues stopping live music because of the fees. I wanted to know more about what everyone’s options were.

2. After I helped to place a song in a TV show, I was asked who the songwriter’s publisher was. She had never bothered to set herself up as a publisher, so I learned then that if you are going to join ASCAP and you aren’t working with a publisher, sign yourself up as both the songwriter and the publisher at the same time. It’s easier than trying to go back and set yourself up with them as a publisher once you have already joined as a songwriter.

Karl (profile) says:

Re: Re: Re:8 Artist royalties vs. mechanical royalties

As a quick p.s., the Copyright Royalty Tribunal is also appointed by the government, so it would appear that these rates are indeed set by law.

Earlier, I was confusing the Copyright Royalty Tribunal (radio/performance PRO’s) with the Copyright Royalty Board (SoundExchange). Hopefully that’s an understandable confusion.

Karl (profile) says:

Re: Re: Re:5 Another option

…But, as I said, you’re 100% correct about performance royalties. These are the kind of royalties that the venues are expected to pay. These royalties all go to the songwriters.

SoundExchange is the only entity that pays performance royalties to “recording artists” (actually, major labels). It only covers digital radio (internet and cable), not terrestrial radio (yet), and not live performances.

Suzanne Lainson (profile) says:

Point of clarification: I'm not arguing about copyright

Just so everyone knows where I am coming from:

I’m not discussing whether or not musicians and venues can play OTHER people’s music.

What I am saying is that right now we don’t have a way for a songwriter who hasn’t joined a PRO to play his own music in a commercial venue (even one he owns) without the venue being asked to pay licensing fees to the PROs.

I found one case where a musician successfully argued such a case:
___

The Richard Phillips vs BMI Story: “I was asked how I know that no musician at the restaurant was performing ‘licensable BMI music.’ I answered that I am their only musician. I was asked how I know that the songs I sing are not ‘licensable BMI music.’ I answered that I wrote them myself. I was told that if the songs are copyrighted, the rights are owned by ASCAP or BMI. I answered that I copyrighted them myself, without assistance.”
___

But aside from the above case, the argument has been that if you play music in your venue, you will play music by some songwriter who is a member of ASCAP, BMI, or SESAC therefore you should pay the three licensing fees.

I find the concept too restrictive when a songwriter can’t give permission to play his music and hasn’t authorized an organization to collect fees on his behalf. I realize that this situation isn’t likely to change, but I thought it was worth at least explaining my position.

Suzanne Lainson (profile) says:

Re: Point of clarification: I'm not arguing about copyright

Here’s a bit more from that article:

The Richard Phillips vs BMI Story: “Congressman McHugh had forwarded my letter to the United States Copyright Office and had elicited a response from Marilyn Kretsinger, Assistant General Counsel. I should not have been surprised. John McHugh had stood up for north country artists before, and no doubt he will do it again. Marilyn Kretsinger upheld each of my contentions. In her words, ‘BMI has the authority to issue a license only for those songs that are in its catalogue of representation.’ If the performance venue does not ‘publicly perform songs represented by BMI,’ then a BMI license is not needed. She further stated: ‘With respect to the musical compositions that Mr. Phillips has authored, no performance license is necessary since Mr. Phillips is the copyright owner of those songs.’ With respect to traditional folk songs in the public domain, if I am ‘not performing a copyrighted arrangement of a public domain folk song, then a BMI license is not required.

The opinion has far-reaching implications for independent musicians and for the entrepreneurs who hire them. No venue is in need of a performance license unless one or more of its musicians are performing compositions or arrangements copyrighted and licensed through ASCAP, BMI or SESAC. The copyright owner enjoys exclusive performance rights and, therefore, the exclusive right to profit from their performance. The point is so obvious that it has never been litigated, which makes this a landmark decision. The full texts of the Copyright Office opinion and all related correspondence are available online at http://www.northnet.org/minstrel Appendix BMI.”

Karl (profile) says:

Re: Point of clarification: I'm not arguing about copyright

That’s a good article. Unfortunately, the ending isn’t as successful as the title would suggest:

But I never did get my job back. The restaurant owners have decided not to have any live performances or to play any recorded music. To them it is not worth the hassle. The customers must settle for radio and television. And I have not found such a lucrative job since. Such is the legacy of BMI.

Technopolitical (profile) says:

Re: Re: Point of clarification: I'm not arguing about copyright

Karl, Suzanne has you out classed.

Completely

She is writing as a professional music writer and copyright researcher..

And an asute one at that.

But , the more you ask , the more I , and other readers, learn
from the musician perspective from Suzanne — RE: copyrights.

So , please do keep posting Karl ,

And I hope Suzanne finds time from
her intense schedule to reply.

I love her posts here.
——————–
Hi Suzanne , hope all is well,
—————————-
Met won over O’s.

good day.

Mike’s day off.
—————————————

Suzanne Lainson (profile) says:

Re: Re: Re: Point of clarification: I'm not arguing about copyright

I don’t want to get into any fights about copyrights. 🙂

My primary concern is giving creators, in this case songwriters, control over their works.

Here are a couple of things to consider:

1. If you become a member of a PRO, you are giving them permission to collect performance royalty fees for you, even if that money never gets to you. So if you want to be able to give a venue permission to play your music for free, you can’t be a member of a PRO.

Similarly, if you want to have total control over your music, don’t sign with a music publisher.

2. The system of licensing venues doesn’t seem to be working well because there doesn’t appear to be an easy way for one or more non-member songwriters to give a venue permission to play their songs without paying performance royalties.

So my issue isn’t about copyright, but about creative control. When you write a song, it is automatically copyrighted. I’m fine with that.

Once you make the song public, others can record it, although they have to pay you mechanical royalties to do so (unless you give them permission to do it for free).

Once you start signing deals with a PRO, a publisher (other than yourself), or a record label (other than yourself), then you start to lose control.

Technopolitical (profile) says:

Re: Re: Re:2 Ask Mr. Ivan Ulz , he will tell you !!

SL :”Similarly, if you want to have total control over your music, don’t sign with a music publisher.”

ME :

just ask my good friend for almost 30 years now — oh my !!

http://www.ivanulz.com/about/index.html

Ladies and gentlemen: Mr. Ivan Ulz

“In 1964, Ivan surprised everyone when his song, “A Letter to the Beatles” was recorded by the Four Preps, and listed on the Billboard Hot 100. Encouraged by this, he began writing pop music. In 1970 he made an album of his own work, “Ivan the Ice Cream Man.” Ivan collaborated with well known musicians { ed . note :Jackson Browne , Lowell George ]and several of his songs were recorded by major artists. However, Ivan’s successes in adult music remained marginal.”

Ivan moved to Greenwich Village, NYC in 1980, leaving behind a music scene that no longer appealed to him. Folk music was out of fashion and many of his friends had drifted away or died from drug abuse.

Looking for work in New York City, Ivan decided to play a hunch and applied for a job in a nursery school. He didn’t have a degree, but early experience in his parents’ nursery school spoke for itself. Ivan began working as an assistant teacher and quickly realized that his real expertise was in making music with children. Word got around and soon Ivan was a “music specialist,” playing and singing at a number of Village schools each week.

Ivan’s reputation as a children’s songwriter, performer, educator, and purveyor of classic children’s songs continues to grow. He made his first CD for children, “Songs from the Old School,” in 1999. It contains new performances of songs that Ivan heard in his parent’s school, many of which have been forgotten for more than a generation. The featured track on the CD is Ivan’s own “Fire Truck!”. Also released as a book/CD by Scholastic, this tune is already a classic in its own right – hailed as a “preschool anthem” by The New York Times.

These days you’ll find Ivan performing in schools and concerts on both coasts, private parties, public parks, and the occasional NYC performance art club. A second CD for children, with newly written original tunes and more rediscovered ‘songs from the old school’, is in the works.

http://www.ivanulz.com/about/index.html

Karl (profile) says:

Re: Re: Re:2 Point of clarification: I'm not arguing about copyright

unless you give them permission to do it for free

The statutory rates are actually set by Congress, and thus are law. For example, I believe that publishers cannot force you to sign away performance royalties, or accept a lower rate.

In the case you mentioned, really what you’re doing is agreeing not to enforce the law. As is your right, of course.

I think that’s how it works, anyway. It’s a tricky issue. For example, let’s say you’re an internet radio station that only plays music covered under a Creative Commons license. As far as anyone can tell, you still have to pay the statutory rates to SoundExchange.

Suzanne Lainson (profile) says:

Re: Re: Re:3 Point of clarification: I'm not arguing about copyright

The statutory rates are actually set by Congress, and thus are law. For example, I believe that publishers cannot force you to sign away performance royalties, or accept a lower rate.

That’s right. There’s a standard fee.

But if a TV or movie wants to license the song and you have a publishing deal, then the publisher can get between you and that deal. So once you sign a publishing contract, there are some negotiations that have to include the publisher.

I’ve looked over synch contracts for artists I’ve worked with. It’s very easy to do when the artist is the sole songwriter, the publisher, and the label. Then it’s just one person who has to sign.

If there are co-writers and they each have publishers, then you’ve got to get a lot of signatures. Often for TV shows they want an okay in 24 hours, so it’s a ton easier with just one person making the decisions and giving the authorization.

Suzanne Lainson (profile) says:

Re: Re: Re:4 Point of clarification: I'm not arguing about copyright

Without getting into a lot of details, there are three kinds of royalties:

1. Performance. Those are collected and paid by BMI, ASCAP, and SESAC. These are for songs performed on the radio, on TV, in venues, etc. There is no legal rate. Each organization has a formula to determine how much a member songwriter gets. The publisher also gets the publisher’s share of performance royalties. If the songwriter is also the publisher, then the songwriter gets the both the songwriter and the publisher shares.

2. Mechanical. This is a legally set rate. Currently it is 9.1 cents a song per recording. If you want to cover someone else’s song on your CD, you pay a fee of 9.1 cents per song per CD. So if I press 1000 CDs with a Beatles cover, I send someone (usually the Harry Fox agency) $91 to be able to use that song for that many copies. This is divided up between the songwriter and the publisher in whatever split they have agreed upon. (It’s usually 50/50 of the total amount, but not always.)

3. Synchronization. This is to use a song in a TV show, film, etc. It’s all negotiable. No standard rate. In this case, not only do songwriters and publishers get into the act, the label that owns the recording also gets involved.

Karl (profile) says:

Re: Re: Re:5 Point of clarification: I'm not arguing about copyright

Performance. Those are collected and paid by BMI, ASCAP, and SESAC. These are for songs performed on the radio, on TV, in venues, etc. There is no legal rate.

I thought the royalty rate for these is set by the Copyright Royalty Board. That may only be for digital transmission, though.

Suzanne Lainson (profile) says:

Re: Re: Re:6 Point of clarification: I'm not arguing about copyright

Here’s some info.

NMPA: “Recent Ruling of the Copyright Royalty Board (CRB)
OCTOBER, 2008
In a ground-breaking ruling, the CRB established the following rates:
Physical Product – 9.1 cents
Digital Product – (digital phonorecord delivery) – 9.1 cents
Interactive Streaming – (for subscription services) and ephemeral copies – the industry stakeholders entered into a settlement agreement providing a percentage of revenue royalty. For the first time, the parties acknowledged that a mechanical royalty is due for interactive streaming.
Ringtones – 24 cents
Late Fee – for the first time, the CRB established a late fee of 1.5% per month, to be paid to the publishers if royalties payments are late.”

Copyright Royalty Board Issues Decision

The Webcasting/CARP Fact Sheet | Future of Music Coalition

SoundExchange finds artists to pay royalties – SFGate

The Future of Music Royalty Rights – Performance Rights Organizations and the Internet
In response to the new category created by the two laws, a new form of PRO has been created which specifically collects and distributes royalties for digital transmissions. This PRO is called SoundExchange.

SoundExchange was created in 2000 and operates as a non-profit PRO. Its activity is designated by the U.S. Copyright office itself. In its beginning stages SoundExchange was also subject to much criticism, again for the differing rates between fees over the internet versus regular radio.

SoundExchange operates in the same format as a traditional PRO, but is different in several ways. First, the company collects and distributes royalties for all artists under the statutory laws, even if the artists are not members (“featured artists”) of the company. That is, they monitor and collect royalties via internet transmission first, and then contact the artist in order to distribute the royalties to them, whether featured or non-featured artists.

SoundExchange’s form of “use tracking” consists of a log which is basically a list of the times that a song is transmitted via the internet. Musicians can look up the list of “plays” on the company’s website in order to find out if they are owed royalties. Note also, once the musician is contacted by SoundExchange, they must register with them in order to collect the royalties

Secondly, as mentioned above, SoundExchange deals with a different copyright license than the three PRO’s (ASCAP, BMI, and SESAC). The three PRO’s cover the composition of the song- this mainly affects the songwriters and composers. SoundExchange covers the recording itself, and this affects mainly the performers and artists.

Suzanne Lainson (profile) says:

Re: Re: Re:8 Point of clarification: I'm not arguing about copyright

There are two different music copyrights. There a song copyright and a recording copyright. So when you are trying to sort out who is entitled to and collecting payment for music, you’re dealing with one, or the other, or both.

Here’s a pretty good description of SoundExchange, which has nothing to do with ASCAP/BMI/SESAC or music venues.

SoundExchange – Wikipedia, the free encyclopedia

Anonymous Coward says:

Re: Re: Re:8 Point of clarification: I'm not arguing about copyright

and I am specifically referring to the fact that artists that want to have nothing to do with SoundExchange must. If an artist wants to give his/her music away to an Internet radio station or to a restaurant or radio broadcaster or otherwise to broadcast for free no parasite third party should be allowed to get involved. Why do SoundExchange and other organizations necessarily get involved against the will of the Internet and other radio stations and the artists? Not only should that be illegal but there should be huge statutory damages for third party parasites that want to take money and contribute nothing of value.

Anonymous Coward says:

Re: Re: Re:9 Point of clarification: I'm not arguing about copyright

and if an artist wants to have a private agreement with a broadcaster (either Internet or otherwise) regarding compensation for the artist no third party should be allowed to get involved (other than perhaps the taxes due to the government of course, just like with any other profession).

Anonymous Coward says:

Re: Re: Re:9 Point of clarification: I'm not arguing about copyright

Ok, I looked more into this and it looks like if a webcaster and an artist want to agree on allowing the webcaster to stream music for free without paying soundexchange anything they can. Read

http://www.broadcastlawblog.com/tags/compulsory-license/

and particularly

http://www.broadcastlawblog.com/2010/02/articles/internet-radio/warner-music-says-no-more-music-for-streaming-whats-it-mean-for-us-webcasters/

for more details.

From what I gather the compulsory license only applies to copyright holders who do not wish to license their music. SoundExchange can offer Webcasters a compulsory license to stream said copyright music against the will of the copyright holders under the condition that the webcasters sign up with soundexchange and pay sounexchange the statutory compulsory licensing fees. But if some webcaster didn’t want a compulsory license to play music that a copyright holder doesn’t wish for them to play and instead only chooses to stream music with the express permission of other copyright holders then that’s perfectly fine and Soundexchange doesn’t even have to get involved. I even read the Soundexchange quotes from your original link on the subject ( http://www.dailykos.com/story/2007/4/24/141326/870 ) and it looks like the blogger misinterpreted it. By nonmembers it is referring to webcasters that want to play nonlicensed copyright music. Nowhere in the quoted soundexchange text does it say that SoundExchange MUST be involved between two parties (the webcaster and the artist) that want to independently agree on terms.

Suzanne Lainson (profile) says:

Re: Re: Re:3 Point of clarification: I'm not arguing about copyright

“Similarly, if you want to have total control over your music, don’t ever record or perform or make it available.”

Fixed that for you.

Yes, I suppose you could say that.

There’s what the law says. And then there is what is currently being done. If you want to closely guard your music, I guess you should keep it to yourself.

Technopolitical (profile) says:

Re: Re: Re:4 If you want to closely guard your music, I guess you should keep it to yourself.

I know , i have more that a few original songs ,, never play in public, as i am saving them , for my coffee & ukulele date with a Beatle. ( ,,,the “cute one” — Ringo.).

Some of my songs, i just do not want out there. Others because they already have had enough public exposure, i do play , cause the copyright is safe and sound,, though if you try to film me playing an original song , w/o my permission,, i will get very angry.

Technopolitical (profile) says:

Re: Re: http://www.ascap.com/rights/

http://www.ascap.com/rights/

Just as citizens of a nation must be educated about their rights to ensure that they are protected and upheld, so too must those who compose words and music know the rights that support their own acts of creation. Without these rights, which directly emanate from the U.S. Constitution, many who dream of focusing their talents and energies on music creation would be economically unable to do so – an outcome that would diminish artistic expression today and for future generations.

At this time, when so many forces are seeking to diminish copyright protections and devalue artistic expression, this Bill of Rights for Songwriters and Composers looks to clarify the entitlements that every music creator enjoys.

We have the right to be compensated for the use of our creative works, and share in the revenues that they generate.

We have the right to license our works and control the ways in which they are used.

We have the right to withhold permission for uses of our works on artistic, economic or philosophical grounds.

We have the right to protect our creative works to the fullest extent of the law from all forms of piracy, theft and unauthorized use, which deprive us of our right to earn a living based on our creativity.

We have the right to choose when and where our creative works may be used for free.

We have the right to develop, document and distribute our works through new media channels – while retaining the right to a share in all associated profits.

We have the right to choose the organizations we want to represent us and to join our voices together to protect our rights and negotiate for the value of our music.

We have the right to earn compensation from all types of “performances,” including direct, live renditions as well as indirect recordings, broadcasts, digital streams and more.

We have the right to decline participation in business models that require us to relinquish all or part of our creative rights – or which do not respect our right to be compensated for our work.

We have the right to advocate for strong laws protecting our creative works, and demand that our government vigorously uphold and protect our rights.

Make Your Voice Heard!

Add YOUR name to the Bill of Rights now!

Add the Bill of Rights to your website.

http://www.ascap.com/rights/

RD says:

Re: Re: Re: http://www.ascap.com/rights/

“Without these rights, which directly emanate from the U.S. Constitution,”

Oh yes? Such as the “Right” to have our culture RETURNED TO US? And the “right” to have it back after a LIMITED TIME? And the “right” to have these “rights” limited in scope AND time? Funny how you super-pro-IP maximalist doomsaying “the world will END without STRONGER COPYRIGHT!!” always, and I mean ALWAYS, completely and utterly ignore the entire other side of the copyright bargain. Its only EVER about “how to lock it up more and get more money for it forever” and NEVER about “how can we fulfill the conditions of these PRIVILEGES we were granted that are NOT NATURAL RIGHTS.” I would love to see, just once, a pro-copyright shill advocate for the “right” of the PUBLIC to be given what they AGREED TO. Just once. But as yet, in decades of this discussion, NOT ONCE has this happened. Its only ever about ONE SIDE of the discussion. The public, which GRANTED THIS PRIVILEGE in the first place, is left out in the cold. Thank you, greedy big media and your bought and bribed lawmakers.

Natanael L (profile) says:

Re: Re: Re: http://www.ascap.com/rights/

That’s one badass DRM scheme that’s needed for that.

“We have the right to earn compensation from all types of “performances,” including direct, live renditions as well as indirect recordings, broadcasts, digital streams and more.”
School plays, singing in the bathroom, humming, whatever. Should they be included too?

That piracy bit needs evidence, since there’s no proof yet (don’t think there ever will be) that it causes any loss of income for anybody but the big company CEOs.

“We have the right to advocate for strong laws protecting our creative works, and demand that our government vigorously uphold and protect our rights.”
The rest of us has the right to advocate for fair laws.

“We have the right to choose the organizations we want to represent us”
Sounds like you have no choice with BMI and those two others.

And about the right to a share in the profit, does that mean percentages? How would that be calculated? Why not just stick to fees?

“when so many forces are seeking to […] devalue artistic expression”
On the contrary. We want to increase the value of artistic expressions. We just don’t want to value it in money and lock it down.

The rest are mostly straw men arguments that I could recite as a defence for my own views.

Suzanne Lainson (profile) says:

Re: Form A New Music Culture

Technically in the US all music is copyrighted.

But there are quite a few experiments going on where people are pooling efforts.

Here’s one of them.

Top 5 Songs: Wired.com’s Crowdsourced Music Experiment Rocks | Epicenter| Wired.com

Personally I like the applications that let everyone create music very easily. I’ve compiled some here.

Music Creation for the Untalented, the Untrained, the Lazy, and Those with Some Time to Kill

Simex says:

Wrong

I write music. I have had music released on legitimate (i.e. barcoded) record labels. I have had music featured in films, and on compilations, etc… I do not want royalties for my work, because I would not like to hinder the playing of my music in any way. I make music so that people can LISTEN to it. Ya dig?

I know for a fact that my music has been played by DJs who perform in front of thousands of people. I know that some of those venues pay PROs, and I know for a fact that I have not seen a dime of that money, since I am not a member– not that I would get money if I were.

They are taking money, on my behalf, and not giving me the money. I don’t believe that I am entitled to this money– that’s not the part that bothers me. It’s the fact that they believe they are entitled to it. I’m not making money off of my music, so why should PROs?

Ok, so imagine that you help old ladies cross the street. One day, a random man on the street starts asking those ladies for money, stating that you had provided a service to them, and that you deserve to be compensated. Frightened by the man, the old ladies hand over their money. Now the old ladies run away when they see you. Then the man comes up to you, and offers to give you a percentage, and you tell him to go screw. This is basically how it is.

The problem is that not everyone wants to be a professional musician– some people just want to rock out and have fun. But now you don’t have a choice. Do you see? You can’t just help old ladies cross the street, you have to either have a street crossing business or go home.

Some musicians WANT people to hear their music, as crazy as that sounds. And every time some obstacle like PROs or DMCA comes along, it becomes harder and harder to get your music in to people’s ears. Music is culture, not a commodity. And as soon as the music “industry” self-destructs, you will see a marked increase in the quality and availability of music. I can’t wait.

artistechemily (profile) says:

ccMixter Musicians Write Songs to Reject ASCAP's Copyright Claims

Not sure if you’ve seen this, but musicians are actually fighting back against ASCAP with music itself. Artists are writing original poems and songs setting the record straight about Creative Commons licensings (ASCAP claims they undermine copyright). You can submit a poem or song until Aug 14…then the producers on the site will incorporate them into fully mixed tracks that will be deliver to ASCAP in September. Music speaks louder than words!

carl says:

licensing agencies hurt musicians

i was an ascap member. wrote a song on an indie released cd. should have got about $30 a year. no big deal but never got it. it was still my money but they gave it to lawyers, limo drivers and expensive office leases and maybe michael jackson or the stones. later opened an original music venue. operated for seven years not getting rich by any means but earning a living while working 80 hours a week. so i guess i made about $6 an hr, less than minimum wage, but, i love music.

ascap says i owe $3000 a year for licensing as well as two other licensing agencies. that’s $9000 a year. they claimed that original artists “usually” perform covers also. i informed them that not only do i insist on original compositions but that it would be deemed lame for the artists at out venue to do so. i offered 9.1 cents per song IF any cover material was ever played.

they sued me claiming several tunes written by michael macdonald were performed. on a night i was closed and out of town. to defend a corporation in court you MUST have an attorney. i could not afford one to defend and lost against a LIE. i closed the venue. there is no longer an original music venue for independent artists in my city, a large city i might add. how does legalized extortion based on lies help anybody, particularly artists?

to all licensing agencies i give the BIG MIDDLE FINGER!!!

Shawn says:

are venues really paying for live performances specifically?

I’m not trying to argue a point because I don’t have the in-depth knowledge to do so. Some questions/thoughts popped into my head though from reading this article and its comments, my basic knowledge of PROs (particularly BMI), and my experience as an independent musician.

From BMI’s website:
“As a performing right organization, or PRO, BMI issues licenses to various users of music, including television and radio stations and networks; new media, including Internet services and websites and mobile technology businesses such as ringtone and ringback providers; satellite audio services like XM and Sirius; nightclubs, discos, hotels, bars, restaurants and other businesses; digital jukeboxes; and live concert venues.”

Regarding the topic of that has emerged in many comments, indie performances at small venues, I began wondering if PRO extortion of these venues that offer indie artists a place to play is really what it’s reported to be. Now I’m not saying PROs are gifts from heaven and have spotless business practices, but I’ll explain what my question stems from.

As a frequent patron of many open mic nights, and booked headliner events as well, of various genres at local venues, I notice that indie artists DO NOT play their (original) music EVERY MINUTE of the night. At some point or another–virtually hours before the first act gets on stage and almost always in between performances at open mic nights–there’s “industry major’s” music played, whether by a DJ or the venues sound system.

To start with, PROs collect a lump sum fee for all of the licenses mentioned above that each venue has, right? So I’m wondering how logical it is to say that live performances are the sole reason venues and consequently indie artists are suffering financially? How can 100% of PRO fees be attributed to indie performances if the venue is already liable for the fees stemming from the hours of “major” music being played? If this is the case, then consider the following example:

—
I’m owner of LIVE INDIE MUSIC EXHIBIT (LLME), a venue specializing in supporting and featuring performances by local talent 3 nights a week. The other two nights, LIME operates as a regular club, offering good music, drinks, and atmosphere. On the 3 nites offering live local music, my venue opens at 7pm; from 7-10 patrons can enjoy popular music, food, and drinks; from 10-2am patrons can enjoy performances by local artists; from 10-2am, there may be mini-intermission between performances where the DJ plays about 3 industry songs…..Well, I can no longer afford the PRO fees I’m paying. The assumption is that I have to shut down or discontinue live performances…..
—

In my opinion, that IS evidence of subpar business practices and using indie music as a scapegoat. Where indie performances ARE NOT ABSOLUTELY the only music being played at an establishment, PRO fees should be considered another line item in the company’s expense report.

Now of course, if a venue is in complete silence (musically) at all times except when having local talent perform a few hours out of the month, and PROs try that blanket fee crap regardless of those local artists having no PRO affiliation, then that is some BULL! But realize that if a venue has seating capacity for 200 or whatever the minimum is (I forgot), then they will almost certainly have ambient music as part of their atmosphere. So to say that performances by indie musicians and PRO’s shady practices are to blame for hardships experienced by venues and indie artists alike, is like saying (I’m not trying to get political; it’s just a easy comparison) only 3 Senators, not the general gov’t corruption that exists, are majorly responsible for this nation’s problems,

***Also, from my knowledge, expenses incurred by indie musicians are tax deductible. For what it’s worth, this makes the pay-to-play model at venues much more reasonable.

***Also, for reference, I’m not really a fan of cover bands (ones that play NO original music), and they aren’t included in the question/thoughts that I’ll be discussing. If a venue repeatedly books them, then that venue should pay up, because that’s somebody’s music being performed. And how much practice/experience does a cover band need in public if all they do is play other people’s music? Unless they have some amazing renditions of the songs they cover, why do they need public exposure? Unless you create original music (instrumental or with lyrics), it should only be a hobby that you enjoy with your friends. Who’d want to be a “musician that will always be a copy of someone else”, and try making it a career anyways?

M. Kispersky says:

Music licensing

I haven’t seen anyone here address What the business gets for it’s Yearly fee. We had a SMALL mom and pop burger joint and were approched one day by a rep from BMI who told us that we owed his company over $700 Dollars a year (we qualified for the lowest rate they had) for the right to play his client’s music. He told us that that covered live performances, any music we played on our CD player, the radio, and even music from cable TV for which we already paid the commercial rate! And this is only one extortionist…There are 2 other major licensing companies who also want their gallon of blood (which we were also contacted by). I have no problem with songwriters getting paid for their work…but how and how much they collect is killing the small business person. A. Our exprience was that not every business in town was approached, so apparently the little guys who are easily intimidated by the thought of court action (which is expressly threatened) wind up being the ones who pay for everyone else. And B. If ALL businesses were charged a reasonable amount…say $250 a year IN TOTAL, the shear volume would eclipse what they are currently making. Big win for the songwriters if it all actually does trickle down to them.
The margin of profit for small independant restaurants is already so narrow that many are folding and the outrageous fees these license companies charge are offensive to decent business practices.

puck (profile) says:

AScap,Bmi, etc.

The way the licensing companies redistribute their collected fees back to songwriters is arbitrary. A cafe could play 90% independent music, but BMI, etc. are banking on the possibility of a business playing their tunes, not the actuality. So even if my cafe never plays Justin Timberlake, he will get some of my money if I pay BMI. It is legalized extortion. It’s not always a $1 a day as you say, either. They want $1800 from us, and that’s just one company! There are 3. If all came collecting, we would be out of business. It is NOT affordable. From my standpoint, customers ask all the time what we are playing. Are we not then, ADVERTISING the music for free?! We don’t sell coffee for four dollars either. Our prices are fair. But now they have to go up because of this. If music creates atmosphere, and you should have to pay for it (on top of already purchasing it), why isn’t there an art mafia? Painings on your wall constitute ambience, yet you don’t pay a yearly fee to hang them. You buy them and it’s done. You obviously don’t operate a small business. Most musicians would be honored to hear ther music being played in a cafe, out of all the choices in the world. If they knew it was costing the business an inordinate amount of money that caused hardship, I’m guessing they would be uncomfortable with that.

D says:

owner perspective

We just got our first contact from ASCAP. The demand is $1700 dollars a year. Now, I know if I sign the contract then BMI and SESAC will also want $1700 per year. ($5100 total or about $14 a day)

We have a commercial DMX pandora player and lease/subscription that includes rights (http://www.dmx.com/pandora/licensing/) for $24.95 per month. $24.95 is extremely reasonable. Not only is my licensing covered but I have a third party (DMX/Pandora) managing my music content and playing without commercial. The cost of the licensing + pandora service + player is less then $1 a day.

Now, ASCAP/BMI/SESAC want me to pay again for live music, or what pops on the TV or the jukebox.

I don’t just magically have $5100. I have to generate it. If a bottle of Bud Light costs me .90 and I sell it for $2.50 that’s roughly less then $1.50 over cost (VAT tax is included in the retail price). That’s 3400 beers I have to move to cover the cost of licensing (or $8,500 from the gross receipts for the year). Of course, that’s not factoring in my labor costs to move product, rent costs, utility costs, state and city licensing fees, internet & phone, advertising, loss ect. My actual profit on a beer is a tiny fraction of the $1.50 gross over cost I used above.

A more realistic number would be .20 per beer. At 20 cents per beer net over all costs: 5100 / .2 = 25,500… I need to sell 25,500 beers to cover the cost of ASCAP/BMI/SESAC licensing. Or, $63,750 dollars from my years gross receipts. Slightly less then two months worth of gross receipts. And, I haven’t even paid the band yet, or the subscription satellite music service. 10-15% of our projected yearly gross receipts just to pay licensing fees.

It doesn’t take much effort on google to find out the staggering failure rate of new restaurants/bars. What many here see as a minor pittance is actually tremendously significant.

You walk into a bar or restaurant and you do a quick calculation on what a gold mine the place is because your paying X amount of dollars over what you could purchase a beer for at the corner store. You don’t consider the costs involved in actually setting that bottle of beer on the bar for you to drink.

We (my brother and I) invested $80,000 and 3200 hours of labor into building during the remodel and stocking the building. We now each work 90-100 hours per week. We assume all the financial risk, the stress and excessive work load. The business is solvent but at what point do people stop coming with their hand out so that we might actually get compensation?

Why is it so cheap to get licensed music from a major industry provider like DMX/Pandora and soooo expensive otherwise? (Because DMX and Pandora are big enough to finance a fight with BMI/ASCAP/SESAC)

From a strictly financial/business standpoint, unless ASCAP/BMI/SESAC can be negotiated down to a reasonable amount (A small fraction of the demand letter) music isn’t economically viable and we will eliminate it. If we had a band every friday and saturday night, that’s 104 performances eliminated and a venue local musicians no longer have available to them (and although small, our venue is a very nice place for small local bands to play). That’s less available income for local musicians. That’s less income taxes collected for state and local government. That’s lower sales volumes and less sales tax collected. That’s less product moved by distributors/brewers and less work for their employees.

And yet, without live music, we would be operating with less risk, less labor costs and a similar or slightly better profit margin on less gross receipts.

BMI/ASCAP/SESAC grossly overestimate the value of a particular song vs the value of the artist performing it. One band singing “Smells like Teen Spirit” may draw additional income into the bar because that band has a following. A different band singing the same song in the same venue may actualy cause a loss because they don’t have a following (even though they may actually be better). It’s the actual performing band that draws, not the specific songs they perform.

So, I’ll contact ASCAP and pre-emptively contact BMI and ASCAP. But they have to be reasonable.

Orisinio says:

Do you have to pay?

I’m a member of ASCAP, and publish my works through my own publishing company, registered with ASCAP. Even if I only play my own material live, ASCAP can require a fee from the venue (at least, that is my understanding).

More to the point is, how do PROs decide who gets paid as a result of these fees? As an ASCAP member, I’ve never received a payment. The algorithms that determine how fees are distributed are proprietary. Used to be, you could judge a song’s popularity by radio play and record sales. Now, who knows?

anonymous NONcoward says:

The only people supporting

The only people supporting ASCAP/BMI’s horrific practices ARE ASScap Bowel Movement Indigestion (BMI) head hunters who take their ‘business’ personally. Anonymous Coward probably IS ascap or bmi. Normally anyone who argues on their behalf are. You won’t find SERIOUS artists arguing for them. Because they’ve already discovered that they’ve been SHAFTED by the very ‘business’ who claims to want to help them.

Jim says:

ASCAP & BMI are good

I work in an irish pub, all our artists play traditional Irish music that is in the public domain, and bmi is still sniffing around for their 30 silver coins. when they can identify the songs/artists they administer and show that we hosted them and then show the payments going to those artists, then it might make sense.

Hiro says:

Re:

Exactly, its not a dollar a day, It is not just one agency. 3 come after you and whats to stop others from coming after you? Its thousands of dollars a year and if you are a small local business trying to support live music, art and the community to enrich lives, these fees are unreasonable. Its like the thugs coming around threatening you to “pay” to keep the “heat” off you in the old gangster movies! People have the misconception that if you own a bar, you make a lot of money.

cbluke says:

Do you have to pay?

It doesn’t matter to the collection agencies if it is legal or not. You can’t defend yourself in court because that cost even more money than buying a license. And that’s how they get you it cost more to defend yourself, so they bully the coffee shop into buying their license so they won’t have to go to court to defend themselves and lose time at work and pay a lawyer

TuneD (profile) says:

licensing agencies hurt musicians

As a solo-acoustic cover musician here in NJ, I recently went on a booking rampage and knocked on the doors of a few establishments that host live entertainers. I was dismayed by the response I received by a restaurant owner who asked if I pay royalties to BMI. She was recently approached by a PRO(s) who threatened her with a $9000 annual tab. After performing my own research via the BMI website, I came to find out the liability falls on the establishment’s hands, but that doesn’t make me feel any better about the situation, because if they’ve threatened her, they’ve threatened other places I’d like to perform. I’ve always looked at the service I provide as a win-win for me (the performer) and you (the restaurant/bar owner). If I owned a bar and was approached by PROs demanding $9000/year, I would absolutely do away with live music, too. It sucks to say that, but it’s business survival.

Find me a highly successful, original artist today who didn’t perform cover songs, but paid royalties while doing so, in their early years. Highly unlikely! We all do it. And do you think an international rock star would come after Little Joe Schmuckatelli for covering their song at the local watering hole on a Friday night? Of course not, because they did the same damned thing back in the day.

The lawyers need to get their piece of the pie. That’s all it boils down to.

TuneD (profile) says:

licensing agencies hurt musicians

One conspiracy theory I’ve developed over the above encounter ^ regarding the establishment who sent me walking, is that they brought in one of those newer, digital jukeboxes. It made me wonder if there were representatives checking up on their subscribers to ensure their jukeboxes were being played instead of live musicians meddling with their profit opportunity. The whole thing had me scratching my head because this particular restaurant is out in the middle of nowhere, far from where you would expect anyone to bother them.

Anonymous Coward says:

Sesac, BMI and Ascap are honestly stealing. I work at a night club and recently got a notice from Ascap that we owed them roughly 12,000 dollars, plus 8% of revenue. That would come out to be about 36,000 a year. Not so bad I guess but If where I work pays 192,000 a year in wages, 42000 a year for rent how much is left over for profit and just wait till BMI and Sesac hit you with the same thing. The last renew we did between Ascap, Sesac and BMI cost us almost 40,000 and that is just for recorded music.

TuneD (profile) says:

Wow, this is unbelievable. Thanks for sharing. If you don’t mind me asking, what state is your club in and what’s the max occupancy? Just curious, b/c I’m in New Jersey and we have several large bar venues (mostly in the shore towns) that work exclusively with agency cover bands. I would imagine these types of clubs must pay in the ballpark of what you described. Maybe more?

Does your club have bands? I just noticed you wrote, “$40,000 is just for recorded music.”

Thanks again for the enlightenment! I’m a working musician and find this to be insane.

Cheers!

gigmaster (profile) says:

Re:

I would love to see how it would work if painters, sculptors, and such, had to put up with the same BS that musician’s do. If every doctors office got letter and phone calls threatening them with legal action for every painting or print they had hanging in their offices, and every art show got threatened the same way, I’ll bet you’d see some changes in the law, real quick. But, as long as it’s just us scumbag musicians not being able to make a living, no one cares.

Dave says:

Re:

Dollar a day? Where do you get that number. Im working with a small venue (45 occupancy) one night a week, no cover Acoustic. ASCAP wants about $1000. Non of the ASACP artits I book ever see a peny of it.That is $19.23 per day of music. Argue the validity od ASCAP all you want but at least use real numbers. I havent even looked into the other Two PRO’s yet. I would just assume give that $20 to the Artists instead of sending it ASCAP so ASCAP can send them nothing or penny’s at the most. Seams like small venues and independent Artists are getting screwed to me.

Mike Stanley (user link) says:

Music Licensing

What a misguided view of the music industry you have, shameful. It is not BMI/ASCAP killing the music scene, it is venues that fail to pay relatively small and completely legal licensing fees for the music they distribute. It is the PENALTIES for failing to obtain licensing that is expensive, and they knew they needed to pay it when they got they’re liqour license.
Don’t blame ASCAP/BMI; blame cheap venues that devalue the work of musicians by failing to pay what they owe.

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