So I understand that ASCAP has the legal right to collect licensing fees to cover any music in their repertoire that is publicly performed. But, ASCAP does not have a right to licensing fees when there is no PUBLIC performance. ASCAP itself says: A public performance is one that occurs "in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."
Even if the bride and groom rent a hall for their wedding, for the duration of their rental contract, that hall is NOT a place "open ot the public." It is no more open to the public than my rental apartment is open to the public. Likewise, a store may be open to the public but after hours, when the shop is closed, it is NOT OPEN TO THE PUBLIC. Open to the public has to mean that "anyone can come in" with or without an invitation. Thus, for the duration of the rental of the hall for a private event, the hall is open ONLY to those who are INVITED guests.
And, I don't know about most of you but I certainly did NOT have a "substantial number of persons outside of a normal circle of family and it social acquaintances" at my wedding. Every single person at my wedding was either a family member, a close friend of a family member, or at the very least, some a social acquaintance of one or more of my family members.
Even if one has a very large wedding and therefore decides to hire help (caterers, waitpersons, etc.) these people do not make up a "substantial number of persons" ...certainly NOT in comparison to the number of family members and friends at the wedding. And besides, the hired help is NOT there to listen to the music or dance to it anyway! The music is certainly NOT being performed in order to entertain the hired help in any way.
Maybe if the bride or groom is a member of the royal family or a politician or some other big name media star, there may be enough reporters and hired security people on hand to justify saying that the wedding is "public." But for the wedding of your average everyday bride and groom, the wedding is a private event attended only by members of the family and the family's social acquaintance. ERGO, NO PUBLIC PERFORMANCE therefore NO LICENSING FEES DUE.
ASCAP is overreaching to even try to claim that they can collect performance licensing fees on weddings in general.
My friend owns a VERY small art store in a small town where she sells her own paintings and the artwork of half a dozen local artists on a consignment basis. She's been open a couple of years and, after paying rent, utilities, insurance, etc., she just about breaks even. Fortunately her husband earns a good living so she can afford to continue to indulge her "hobby." My friend's store is in an old house that has a little garden on the side with a deck. About a year ago, she decided it would be fun and would provide some support to local musicians if she started hosting concerts in the garden on Saturday evenings a couple of times a month in the spring and fall when the weather is nice...maybe 10 shows per year.
The performers use the deck as a stage and either play acoustically or provide their own sound systems. The audience sits in folding chairs in the garden. Tickets are $10... every penny of which goes directly to the performers. Typically there'll be 15 or so people in the audience so the performer can count on taking home around $150 bucks. Not too shabby for a couple of hours work - even if you're dividing it between 3 or 4 band members.
My friend pays to advertize the shows out of her own pocket and she also puts out free chips and dips and sodas and iced tea for the performers and for the audience. Performers are all local singer/songwriters who mostly sing their own compositions but who occasionally sing a cover tune in response to a request from the audience. Some of the singer/songwriters have registered their own works with ASCAP or BMI. Others are totally independent artists. None are close to being among the 200 top touring acts in the U.S.
My friend isn't even trying to make any money off of the shows. She is SPENDING her own money (well, actually her husband's money) to support local musicians. At one time she would probably have been lauded as a patron of the arts.
But, my friend just got a letter from ASCAP demanding that she purchase a license to the tune of $300 per year plus a percentage of the ticket price...or cease and desist holding public performances immediately. Given the number of shows she holds per year, the basic license alone comes out to $30/show and, with tickets set at $10 only about 15 people in the audience, that is 20% of the gross revenue.
I'm an IP lawyer so she came to me asking "what should I do?"
Basically I had to tell her she had three options:
1) IF she could be absolutely certain that no one would ever again play an ASCAP registered song unless it was their own copyrighted song, she could tell ASCAP to take a flying leap. Problem is, as we all know, once a performer is on-stage, there is no possible way for the venue operator to control what he/she plays. Even asking for a play list prior to the performance AND insisting on iron-clad language in a contract that the performer will play only his/her own music or music in the public domain, won't help. The law puts liability for infringement on the venue operator...NOT on the performer.
2) She can purchase "protection" by paying the ASCAP licensing fee. She could then take this money out of the gross door before paying the remainder to the performer. Worse, once ASCAP gets its hooks into her, you can bet that BMI and SESAC won't be far behind. Their demands together will probably about equal ASCAP's so figure $600/year total for the three licenses. That means my friend will need to take $60 out of the gross door to pay for licenses, leaving the musicians with $90 instead of $150.
3) My friend can stop putting on musical shows.
I strongly recommended the third course of action. Believe it or not tho, my friend has actually decided to purchase the licenses out of her own pocket and will continue hosting concerts and giving the entire door to the performers. Like I said tho, her husband has a very well- paying job so she can afford to do this.
Most people would not be able to.
If ASCAP really wanted to be fair and truly support all songwriters (instead of just the big names), they would institute a policy whereby any songwriter who registered his/her music with ASCAP automatically received a license from ASCAP that allowed him/her to play any other ASCAP musician's music in any venue that was below a certain size WITHOUT the venue operator being required to have a license. This blanket free-use license would continue to be good until the songwriter reached that magical "top 200 songwriter status" at which point any venue that wanted to hire him would have to pay a licensing fee. Coffeehouses and other small venues would proliferate and venue operators would LOOK for ASCAP registered songwriters to perform at their venues. Then, if the ASCAP performing songwriter screwed up and sang a BMI registered song, the onus should be on the songwriter, not the venue.
BMI and SESAC should do the same thing. Then they would actually be offering something real to new songwriters who would want to join whichever PRO already had the largest stable of other songwriters whose works the performing songwriter might want to cover in his shows.
Just my 2 cents
Techdirt has not posted any stories submitted by Bev A.
How is a wedding a public event???
So I understand that ASCAP has the legal right to collect licensing fees to cover any music in their repertoire that is publicly performed. But, ASCAP does not have a right to licensing fees when there is no PUBLIC performance. ASCAP itself says: A public performance is one that occurs "in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."
Even if the bride and groom rent a hall for their wedding, for the duration of their rental contract, that hall is NOT a place "open ot the public." It is no more open to the public than my rental apartment is open to the public. Likewise, a store may be open to the public but after hours, when the shop is closed, it is NOT OPEN TO THE PUBLIC. Open to the public has to mean that "anyone can come in" with or without an invitation. Thus, for the duration of the rental of the hall for a private event, the hall is open ONLY to those who are INVITED guests.
And, I don't know about most of you but I certainly did NOT have a "substantial number of persons outside of a normal circle of family and it social acquaintances" at my wedding. Every single person at my wedding was either a family member, a close friend of a family member, or at the very least, some a social acquaintance of one or more of my family members.
Even if one has a very large wedding and therefore decides to hire help (caterers, waitpersons, etc.) these people do not make up a "substantial number of persons" ...certainly NOT in comparison to the number of family members and friends at the wedding. And besides, the hired help is NOT there to listen to the music or dance to it anyway! The music is certainly NOT being performed in order to entertain the hired help in any way.
Maybe if the bride or groom is a member of the royal family or a politician or some other big name media star, there may be enough reporters and hired security people on hand to justify saying that the wedding is "public." But for the wedding of your average everyday bride and groom, the wedding is a private event attended only by members of the family and the family's social acquaintance. ERGO, NO PUBLIC PERFORMANCE therefore NO LICENSING FEES DUE.
ASCAP is overreaching to even try to claim that they can collect performance licensing fees on weddings in general.
ASCAP bullying
My friend owns a VERY small art store in a small town where she sells her own paintings and the artwork of half a dozen local artists on a consignment basis. She's been open a couple of years and, after paying rent, utilities, insurance, etc., she just about breaks even. Fortunately her husband earns a good living so she can afford to continue to indulge her "hobby." My friend's store is in an old house that has a little garden on the side with a deck.
About a year ago, she decided it would be fun and would provide some support to local musicians if she started hosting concerts in the garden on Saturday evenings a couple of times a month in the spring and fall when the weather is nice...maybe 10 shows per year.
The performers use the deck as a stage and either play acoustically or provide their own sound systems. The audience sits in folding chairs in the garden. Tickets are $10... every penny of which goes directly to the performers. Typically there'll be 15 or so people in the audience so the performer can count on taking home around $150 bucks. Not too shabby for a couple of hours work - even if you're dividing it between 3 or 4 band members.
My friend pays to advertize the shows out of her own pocket and she also puts out free chips and dips and sodas and iced tea for the performers and for the audience. Performers are all local singer/songwriters who mostly sing their own compositions but who occasionally sing a cover tune in response to a request from the audience. Some of the singer/songwriters have registered their own works with ASCAP or BMI. Others are totally independent artists. None are close to being among the 200 top touring acts in the U.S.
My friend isn't even trying to make any money off of the shows. She is SPENDING her own money (well, actually her husband's money) to support local musicians. At one time she would probably have been lauded as a patron of the arts.
But, my friend just got a letter from ASCAP demanding that she purchase a license to the tune of $300 per year plus a percentage of the ticket price...or cease and desist holding public performances immediately. Given the number of shows she holds per year, the basic license alone comes out to $30/show and, with tickets set at $10 only about 15 people in the audience, that is 20% of the gross revenue.
I'm an IP lawyer so she came to me asking "what should I do?"
Basically I had to tell her she had three options:
1) IF she could be absolutely certain that no one would ever again play an ASCAP registered song unless it was their own copyrighted song, she could tell ASCAP to take a flying leap. Problem is, as we all know, once a performer is on-stage, there is no possible way for the venue operator to control what he/she plays. Even asking for a play list prior to the performance AND insisting on iron-clad language in a contract that the performer will play only his/her own music or music in the public domain, won't help. The law puts liability for infringement on the venue operator...NOT on the performer.
2) She can purchase "protection" by paying the ASCAP licensing fee. She could then take this money out of the gross door before paying the remainder to the performer. Worse, once ASCAP gets its hooks into her, you can bet that BMI and SESAC won't be far behind. Their demands together will probably about equal ASCAP's so figure $600/year total for the three licenses. That means my friend will need to take $60 out of the gross door to pay for licenses, leaving the musicians with $90 instead of $150.
3) My friend can stop putting on musical shows.
I strongly recommended the third course of action. Believe it or not tho, my friend has actually decided to purchase the licenses out of her own pocket and will continue hosting concerts and giving the entire door to the performers. Like I said tho, her husband has a very well- paying job so she can afford to do this.
Most people would not be able to.
If ASCAP really wanted to be fair and truly support all songwriters (instead of just the big names), they would institute a policy whereby any songwriter who registered his/her music with ASCAP automatically received a license from ASCAP that allowed him/her to play any other ASCAP musician's music in any venue that was below a certain size WITHOUT the venue operator being required to have a license. This blanket free-use license would continue to be good until the songwriter reached that magical "top 200 songwriter status" at which point any venue that wanted to hire him would have to pay a licensing fee. Coffeehouses and other small venues would proliferate and venue operators would LOOK for ASCAP registered songwriters to perform at their venues. Then, if the ASCAP performing songwriter screwed up and sang a BMI registered song, the onus should be on the songwriter, not the venue.
BMI and SESAC should do the same thing. Then they would actually be offering something real to new songwriters who would want to join whichever PRO already had the largest stable of other songwriters whose works the performing songwriter might want to cover in his shows.
Just my 2 cents