Enjoying Live Music Is Expensive
from the please-eat-in-silence dept
Someone who prefers to remain anonymous sent in the following link, highlighting a dispute in an Oregon restaurant that used to allow live bands to play. It turns out that, recently, one local band played three cover songs from the 1970's. That night, there happened to be a rep from the American Society of Musicians and Publishers in attendance, who noted down the three cover songs (and the fact that the restaurant had not paid a license for them) and filed a federal lawsuit against the owner. The restaurant may now shut down since it can't afford the fines, but in the meantime has stopped letting bands play on the off-chance they might play a cover song and bankrupt the restaurant. Now, there are two arguments here. One is that the songwriters who wrote the original song deserve to get paid -- but if you look at the net result here, you'd have to think they're much worse off. Now, their music won't get played at all, whereas before, having a cover band play your tune would likely only generate more interest in getting people to go out and buy a copy of the song somewhere. When the industry continues to look at every time music is played as a revenue opportunity, rather than a promotional one, they actually end up shrinking their own market.
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Cover tunes
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The RIAA/MPA have permanently damaged the world
That singular legal term spells doom for any venture caught between its cross hairs. And I'm afraid the RIAA and its fellow entertainment industry conspirers have successfully and permanently upset the legal balance.
Congress can never put the genie back in the bottle from which they happily pulled the cork greased by RIAA and MPA dollars (How many CDs did Orin Hatch sell anyway?). Thank God Congress aligned so closely with these representives of industries so critical to the health of the US economy.
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Oh, I dunno...
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Wouldn't it be the band?
Either way it's the type of idiotic antics I expect from anyone related to the music industry.
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Re: Enjoying Live Music Is Expensive
I'm pretty much done with artistes/musicians/artist managers who expect to make a living from performing music (often by other composers) without bothering to understand the "business of music". As a classical music/opera fan I can comfortably tell you that these music license issues go back to the origins of sheet music publication, ~300 years ago.
My thoughts are:
1) Gaining performance rights for any modern pop song (20th century) is really not that difficult (or expensive);
2) Why wouldn't any any artist expends the effort? Afterall, your self-published/coffee shop song could be in the same postion, in the near-future;
I ask the same question, again and again, with 300 (or more) years of music publishing history to learn from, why is any modern performing musician making the same age-old mistakes?
Just my .02
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Re: Re: Enjoying Live Music Is Expensive
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contradiction
Realisticaly, if we're to think of music as a commodity that has promotional value to promote the value of associated commodities, shouldn't we expect the record companies to protect those associations? And isn't connecting music performance to food and drink sales exactly the sort of promotional value that you've been encouraging the record companies to maximize. So what -- you expected them to think, hey, it's a free world -- let everyone else use our music as a promotional vehicle as well? Not friggin; likely. If music ever becomes a free promotion, count on the record companies litigating very aggressively to protect their exclusive right to promote via copyrighted music. Any other scenario is a utopian fantasy.
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there's more to this issue than you probably know.
it's actually pretty simple. in a nutshell: there are 2 seperate "rights" in a copyright. one is the right to control the use of the composition itself, the other is the right to control the use of the sound recording.
in this case, that means that the bar cannot broadcast live performances, or recordings of a song, unless they contact the publisher (the administrator of the copyright) obtain a license and pay a usage fee. the responsibility falls on the bar, not the cover band.
naturally, this would be nearly impossible to do for every song that is to be played there! so, there are 'performance rights organisations' ASCAP, BMI and SESAC. every publisher and songwriter signs up w/ one of those three organisations. so any public venue that wants to broadcast live or recorded music i.e. ampitheatres, bars, clubs, restaurants, churches, universities, supermarkets, malls.... contacts one or all 3 of those. the performance rights organisation will give a license (and an annual or quarterly invoice) to the venue based on a few factors (such as the average number of people that regularly attend the venue) then the performance rights organisation takes care of splitting up and passing on the royalties to their roster of publishers and writers.
this is a pretty standard license for a public venue to have. just like the bar needs to get a liquor license they should have been aware that they also need to get music licenses. legally, they are not even allowed to play the radio w/out licenses from those agencies.
it's entirely reasonable for the band to assume that the venue is properly licensed. but - they're also potentially getting screwed. If the songwriters of the band's original songs are affiliated w/ a performance rights organisation - then they are also missing out on potential royalties.
as a side note: this issue really doesn't specifically involve the RIAA.
(btw, I am a professional musician, and I graduated from a music college w/ a bachelor of music degree in music business and management)
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Re: Re: Enjoying Live Music Is Expensive
An artist can in fact secure a "performance license" for cover songs. It's done in the jazz market all the time -- if you knew anything about music licensing you'd know that many jazz standards are "covers" of musical theater tunes.
But then again, my familarity is only musicians with established careers/ reputations , with management teams that actually give a sh-t about royalties.
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0.00
"lets see, our figures show your song might have been played 100 times in this last month in these venues.. here is your check for .4 cents.. Il need 5 cents for check processing and handling before I can release this check to you"
anyone have hard numbers?
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Re: 0.00
the point is: does the performance of music contribute to customers wanting to go to a bar. yes, it does. so the bar makes money off of people going there right? yes. should the creators of music be compensated for the fact that other people make money (even if indirectly) from the usage of their music? an awful lot of people think so, and that's why we have the laws that we do.
I don't know much about Oregon, but I'm going to guess that the bar has to get a permit from his state and his town to operate a business. he has to pay taxes to the govt. he has to pay his employee's payroll. he has to pay for rent, or mortgage for his bar. he pays the phone company for phone serice, he pays the cable company for tv service, he also is supposed to pay the songwriters for having their songs played.
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Re: there's more to this issue than you probably k
Yes, the performance license for the venue in the US is more popularly known as a "cabaret license" which may contain the provisions for live performance. At the same time time, US based musicians in the US in most major cities (esp NYC) must also maintain active "cabaret cards". Again, these are issues that go back to the 1920's in the US, so any modern musician should have an awareness off the basic rules.
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Re: 0.00 by paphia
Good points! And some additional follow-up: while folks on this forum may snicker at the composer/publisher royalty pay outs, consider someone with a career like Chuck Berry. If he even received $0.02 USD for every time one of his classic rock 'n roll tunes was performed in a night club (world wide), he wouldn't need to litigate :).
Secondly, the issue with royalty distribution pre-dates the Internet by decades...
One of the largest remaining royalty distribution issues remaining has to do with karoake. Given that karaoke is still pretty much a novelty in the US, it is *huge* business in the rest of world (esp Asia). Sadly, oftentimes karoake follows a business model that does not compensate original composers/performers. Again, the karaoke issues pre-date the publicly available Internet.
Here's a basic timeline timeline from JASRAC:
1987 - JASRAC starts nationwide collection of royalties on the use of music in karaoke.
1997 - JASRAC agrees with the association for on-line Karaoke operators regarding payment of royalties for on-line karaoke.
1998 - JASRAC starts collection of royalties from karaoke shops with a floor space of under 16.5m2 and banquet rooms under 33m2.
Full JASRAC timeline here: http://www.jasrac.or.jp/ejhp/about/history.html
Again I ask, if Chuck Berry were receiving all the royalties he's due, would he need to litigate? As an example, karoake royalties have been a major issue for a long, long time. See: Chuck Berry Sues Karaoke Distributors - http://ipnewsblog.com/index.php/2005/11/10/chuck-berry-sues-karaoke-distributors/
Also, other "classic rock" artists, such as the The Kinks, Rolling Stones, Eric Clapton and even The Beatles -- quietly settled their royalty issues with blues / R & B artists way back in the big, bad '80s. In fact, if you check a legitimate re-release of a Beatles recording, you'll see that Billy Preston is finally credited as a composer -- after years of anecdotal reference as "The Fifth Beatle".
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Re: Re: 0.00 by paphia
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What's Next?
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But why?
I think what is problematic to most people is not that an artist is rewarded for creating a body of music, but the appalling greed of the bureaucracy surrounding those artists. If a bar hosts a live band every Friday/Saturday and on each night only 3 cover songs are played, what is that worth? $2100? And for what? Being a reflection of pop culture? You think that the estate of Jimi Hendrix deserves $30,000 for one song? More to the point, does the publishing company (who basically sits around in this case and collects an undeserved sum) should receive $15,000? The truth is, there is a monopoly/oligopoly in the entertainment business and it has pushed out the free market. That is (one of the reasons) why you see stealing. Consumers want a product at a fair price, not one at a price determined by the publishing company/industry itself. Sure, if Chuck Berry got 2 cents for every time a song of his was performed, he'd be doing great. Problem is, that's not what consumers are going to pay.
I look forward to the day when the music industry as we know it falls to pieces. It'll bring the art back to an industry that claims to be composed of artists.
I was singing "My Ding-a-ling" while walking through my mall this past weekend. I know its not the same thing, but I'll send Mr. Berry an envelope with a nickel in it so I'm covered for next time too.
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Singing along to music on the street.
If I walk outside, and sing a song that's stuck in my brain...
Am I then in fact performing this work?
And is this an offense to this copyright law?
(Other people could start listening to me singing, and thus making it some sort of mini-concert, at least you could interpret it that way)
In my humble opinion, I think the whole system is broken, and has been for a very long time.
Yes, I do think that artists and songwriters need to be compensated for their work, but to the point of suing restaurants/closing businesses?
That kind of actions always causes a backlash, that will hurt the music industry more than any monetary gains can compensate.
(Though the music industry interest-groups seem to disagree)
Money destroys everything that's good.
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Re: But why? by Jimminy
I said "popularly referred to as a carbaret card", and no the system is not quite abolished :). You still need a separate license to perform live music in most major cities in the US. As for musicians, they're best served by being affilated with their local union in some way. Here in Los Angeles it's the "Professional Musicians local 47", see: http://www.promusic47.org/ .
As for the performance fees for a Jimi Hendrix song in a local nightclub -- $30,000??? You must have have pulled that number out of the blue sky, somewhere...
Have you ever managed a nightclub or concert hall? Managed an artist who performs in a venue larger than the neighborhood coffee shop? Ever tried to collect performance fees after the gig?
Where are you getting these opinions?
Since you are feeling so very generous -- please, please send Chuck Berry that nickel. Here's the address for his music publlishing company:
CHARLES E BERRY DBA ISALEE MUSIC
http://tinyurl.com/zu2dw
Add Little Richard and Fats Domino to your list (I'd give Fats a full $.25 --especially after Hurricane Katrina)
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Re: Singing along to music on the street
Performance rights do not apply to "singing a song on the street", "humming a song in the mall", or anything else of that nature.
C'mon use some common sense here. Performance licenses are pretty straight forward -- I am a earning a fee for performing this song(s), at a venue that is licensed by the city/municipality to provide live music. My fee may be nothing more than a cup of coffee and a sandwich -- but those are the facts.
Even if CNN were to be filming on the street as you were to walk by singing with your friends, all broadcast copyrights/clearances would be incumbent upon CNN.
As for your local school or church glee club -- the music director (or other institutional adminstrator), has already cleared performance rights. If your school/church wants to broadcast the performance on local cable TV or print the video to DVD (esp for fundraising purposes), there's a separate license for that -- often the fees are nominal, or waived entirely.
Sorry to burst your idealistic, utopian bubble. Long live the consumers who refuse to pay for music....
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Re: Sony had the right idea...
We're talking about two very different things here. The topic at hand is a "live musical performance" in a public venue of some sort. Not playing the CD at home. :)
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One realizes...
Reminds me of last nights episode of Studio 60, where they accidentally plagarized the comedy routine of someone, and people on the Internet started chatting it up after the show aired. They immediately tried to hunt down this person so they wouldn't get sued, only to find out... well, it was an ironic twist at any rate. I'd say the original author of that comedy routine had an automatic copyright on the contents of that performance... and should feel well within his/her rights to sue someone for performing it without compensation, attribution, or acknowledgement. If only compensation is missing, its still theft if the venue is benefitting and hoping to avoid any such payments.
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Second, the fine for infringing is $750 per instance, so if $2250 worth of fines put the restaurant out of business I suspect there were other issues with the restaurant.
Third, ASCAP/BMI/SESAC restaurant licenses are cheap.
Not to instill actual data, but this is the fee schedule for BMI
http://www.bmi.com/licensing/forms/ede.pdf
Fourth, BMI distributes 85% of the money they collect to composers
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ASCAP Membership is Cheap
Technically, they (the restaurant) is also supposed to pay royalties if they play CDs over a music system, too. Again, a relatively inexpensive ASCAP membership covers that.
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Re: First of all the RIAA has NOTHING to do with t
As we were saying above... thanks so much for the links.
Although I enjoyed the discussion :)
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Re: ASCAP Membership is Cheap
Thanks too!
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Assuming that music is a big part of why people go to this imaginary establishment - that is a fair and reasonable amount to pay to licensing agents.
This fee calculation for the imaginary coffee shop included all live performances, karaoke, playing a jukebox and radio and TV.
Perhaps someone can tell me exactly how the fees are distributed though.
What if I write a song and some other local band covers that song every night in their performance. How does my ASCAP agent even know it was played there?
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Re: What if I write a song and some other local ba
In the US, you are automatically covered by copyright on your original tune. Although it's in your best interest to establish a music publishing company; I'm talking common business sense here, nothing specific to the "business of music".
Also, join ASCAP and/or BMI. Again, the process is straightforward:
Join ASCAP: http://www.ascap.com/about/howjoin.html
Join BMI: https://applications.bmi.com/affiliation/joinen.aspx
Once you have joined ASCAP or BMI they will track royalties for any song that you have registered. Note that your songs do not have to be registered "in advance". Again any legitimate venue will have also joined ASCAP or BMI.
And, yes it's perfectly acceptable to ask for ASCAP/BMI documentation :)
Once you are more established, you may want to also affiliate with SESAC. See: http://www.sesac.com/writerpublisher/whatissesac.aspx
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Re[2]: What if I write a song and some other local
Sorry, I forgot this most important tidbit: In the US, royalty fees are distributed quarterly.
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So it has come to this?
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Ahh memories...
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Re: So it has come to this?
I know Tampa.
The reality is that operating a restaurant/nightclub is one of the riskiest businesses in the US. Music lcensing is the least of your worries -- more likely the high risk was incurred with the food/liquor balance required by the city/municipality/state.
As for music licensing, as was stated above the costs are minimal for a small bar /nightclub -- far less than the local liquor/late night license -- I can assure you.
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So now Techdirt thinks its Don McLean?
Good call on the Google / YouTube story.
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Re: Re: So it has come to this?
I agree with you. But in the last 10 years of playing in this and other cities, I have never once been presented with a cue sheet, or have been asked to present a set list, or have been asked to sign a waiver, or have even had a conversation with a club owner on this subject. Probably because up until recently, it has been a non issue.
IMO, this whole debate stems from the record companies underestimating the growth of online music. Once they finally realized how much money they were losing, they went into panic mode...and started sueing college students for downloading from places like Kazaa.
From most musicians' point of view, the days of "landing a major label deal" are over. You stand to make a better living licensing your music a song or 2 at a time. The "pendulum of control" has shifted from the music giants to the consumer (God I hope radio is next). And until the record companies can adapt, they'll continue to throw farmer punches at unsuspecting music lovers.
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If you feel like paying them tribute, then do so literally, by paying the miniscule royalties you owe them for ripping them off.
Don't feel like paying the songwriters for the songs you're singing? Then write your own, if you have the ability.
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Re:
Now they're suing Dorr for copyright infringement - and they're seeking payment of between $750 and $30,000 for each song, along with attorney fees.
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There was another solution...
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Re: Re: Re: So it has come to this?
No record company was losing money. Despite the decrease in sales, I am not aware of any major label being in the red? Music companies remained profitable (and continue to remain profitable) during the Kazaa and Napster periods. The real reason they started suing college students, was to regain control over the market. However, it was too late. As you state, the pendulum of control has shifted to the consumer.
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Re:
If ever I am required to pay royalties for the songs I play in a club, I will surely do so.
F
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Re: There was another solution...
I strongly doubt that the ASCAP rep randomly wandered into this club on a Friday night, and filed suit on the following Monday morning.
As Finn stated in #36: "...in the last 10 years of playing in this and other cities, I have never once been presented with a cue sheet, or have been asked to present a set list, or have been asked to sign a waiver, or have even had a conversation with a club owner on this subject. "
I'd need to research this incident in Oregon further, but I'm guessing that ASCAP had already had discussions with the club owner about performance fees.
As was also stated, way up in the top of this thread #10: "...[ASCAP/BMI] is a pretty standard license for a public venue to have. just like the bar needs to get a liquor license they should have been aware that they also need to get music licenses. legally, they are not even allowed to play the radio w/out licenses from those agencies."
I'd like to be sympathetic to the rampant conspiracy theories in this forum, but in the real world of operating a legitimate (and successful) live music venue/nightclub, it doesn't quite work like that. A license for music is just part of the cost of doing business, somewhat like utility bills -- or the lease on the building.
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Re: Re: There was another solution...
I'm not so sure, OperaFan...
Sounds to me like he didn't know about the licensing issues. If a rep had talked to him about it before and this is the infraction after "your last warning" kind of thing, then he would have already known about it and the article would have been different.
Now... I know that ignorance of the law is not a defense, but Mousky was right. They could have said "here's what you owe. Kindly pay us or face legal action."
Now to advocate the devil... It could be said that if one of these associations was aware of the actions and did not stop those actions, it would create an implied license for the playing of covered songs (or at least those songs that the association knew about). It could be that the association was avoiding this potential situation by making it publicly known that they are not allowing this to happen uncontested. Kind of a rude and callous way of doing it, in my opinion.
I think that the general consensus of those here that are siding with the club owner (excluding the anti-##AA fanatics) is that while the association is probably right in demanding to be paid, they started out by resorting to the most extreme solution available.
I'd be interested to know if this guy was warned before or something, because it does seem like an ##AA tactic to sue first and ask questions later.
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What about...
I live in St. Augustine, Florida (where street musicians are now outlawed), where we used to have a guy with a guitar and money jar on every corner. What about them?
They are publicly performing, not just humming a tune, and they are doing so for money (they hope). Yet we've never heard of one being harassed by a association rep saying that they need to stop or to pay up.
Do they have to be licensed and are just lucky? Or is there some loophole that clears them?
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know the facts & the law
This has nothing to do with the RIAA (they have no control over copyright laws for music performance), and ASCAP & BMI are musician-sponsored origizations designed to allow the creator to get paid for what they write.
If a musician has a problem with ASCAP or BMI forcing buisnesses to pay for what this article describes, then the answer is easy... don't sign up with them in the first place.
I encourage you to visit ASCAP's website and know what they really do before you ASSUME they are the devil.
http://www.ascap.com/about/
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So what?
I would have thought it would be the band, not the restaurant, who would have had to pay this license, but there definitely would be a license fee due.
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Re: What about Street Musicians?
While I've worked with several non-profit performing arts organizations focused on "bringing art to public spaces", I've not directly worked with "street musicians", as an un-affiliated entity.
As always, regulation regarding public performances of music is structured by city/municipality/state laws. If you are performing in a public space, licensed under the aforementioned "cabaret laws" (see comments #10 and #11), then that public space is responsible for licensing fees for the music performed.
That being said, I've never heard of ASCAP/BMI hassling a street musician either :)
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Dumbest thing I have heard (today)!
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Re: Dumbest thing I have heard (today)!
not just live music, all music, cds, the radio - it all requires licensing in order to be played in a public venue. and as many commenters have pointed out - it is a standard thing, and compared to other business expenses, it's really not a big deal. if the bar can't handle the annual fee, then they probably have other issues.
the bar is making money from customer's paying to see you play. you are making money by playing there. I'm guessing you're in a Beatles cover band? i'm sure it helps that people want to come hear you play Beatles tunes. you are all making money off of somebody else's music. and our country's laws say that the copyright holders should be compensated for that.
its not a matter of ASCAP imposing fees just b/c they feel like it....it's all written into our country's copyright laws.
intellectual property laws have always been hotly debated. but people that have such strong opinions would be well served by actually reading about the laws, what they do and do not cover, why we have them, and what its like in other countries that don't have such laws.
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Re:
When you sell music, you're selling (typically) some representation of your music (sheet music, CD, MP3) licensed for private performance - not public performance.
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Re: Dumbest thing I have heard (today)!
Here is the basic senerio to follow your logic: "My Garage Band" starts off by playing covers at "My Favorite Bar." They earn $300 a night performing songs they didn't write.
They get bigger and are now playing the same cover set 7 days a week at bars all over town. They earn $3000 a week performing songs they didn't write.
They then become known as the best cover band in the state and are now playing their cover songs at the state fair. They earn $30,000 a week performing songs they didn't write.
They then become known as the greatest cover band in the country and are now playing the super bowl. They earn $300,000 performing songs they didn't write.
Can you see how there can be no legal distinction between them playing for $300 at the local bar once a week and playing for $3,000,000 at the nationally televised Super Bowl? The only real difference is the $$ amount, and it is just impossible to make the copywrite laws work on an arbitrary $$ amount of impact.
I do agree, however, that the current formula is greedy on the artist's part. I know a karaoke DJ who works 7 nights a week and pays his ACASP dues of $1000 a year for the right to play karoake. HOWEVER, he is aware that NOT ALL ARTISTS are members of ACASP, and he technically should be paying fees to all such organizations in order to be in total compliance. Likewise, there are many karaoke songs out there that were never licensed in the first place by the distributors of the CDGs. Should he get sued when someone representing that artist hears him using their song, even though he has no way of knowing which songs are legally obtained and which are not??
I think part of the solution, though not the most lucrative for artists, is this:
REGULATE. That is, why are there 3 private FOR PROFIT companies handling songwriter copyrights, when there should only be one NOT FOR PROFIT that all artist have to register with if they choose and then only one that users HAVE to pay dues to in order to perform these songs. This will make it less confusing AND less expensive for the end user. PLUS, it will force the regulators to make the rules more black and white!!
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Live cover songs
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ascap (totally bogus)
Sincerly Richie Bonito
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