ASCAP Now Demanding License From Venues That Let People Play Guitar Hero

from the can't-listen-without-paying-up dept

Tue, Dec 15th 2009 7:27am — Mike Masnick

We've been detailing how the various collection societies around the globe have been trotting out all sorts of dubious reasoning to try to get more people to pay up for a license. In the US, ASCAP has been particularly ridiculous, seeking public performance licenses for (legally licensed) ringtones as well as the 30-second previews you find on music download stores like iTunes. ASCAP has already succeeded in forcing YouTube to pay up as well. Of course, the end result has actually been harming many up and coming songwriters and musicians, as more and more venues are choosing to forego music entirely, because it's just not worth having to pay up the fees that ASCAP charges.

In the latest overreach, sent in by reader faceless, ASCAP is demanding a licensing fee from a venue that has the video game Guitar Hero for people to play. While the venue does sometimes have live musicians, it has purposely chosen to only allow original music (no covers) from artists and songwriters not covered by ASCAP, to avoid having to pay the fee. As the venue owner notes, it's ridiculous to think that the venue should have to pay for a license just to let people play Guitar Hero, saying, "patrons are paying for the entertainment of the game not for the listening value of the music." But, of course, that's not how ASCAP views any of these things, insisting that the value itself comes from the music, and thus the songwriters must absolutely be paid. Of course, this isn't the first time ASCAP has come down hard on music video games. Earlier this year, it insisted that the video game companies themselves should pay performance licensing fees as well -- so in this case it looks like they're trying to double or triple dip.

Of course, the most likely end result? The venue will drop the game, and fewer people will hear the music. This harms everyone -- the songwriters, the musicians, ASCAP and the venue. But ASCAP seems to think it's the right move. This is why more and more musicians are recognizing that what's good for ASCAP is not good for songwriters.

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Filed Under: guitar hero, licensing, venues, video games
Companies: ascap

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known coward, 15 Dec 2009 @ 7:34am

I guess i am lost
I would have thought that paying for and owning the game would be enough to license the use of the materials in the game. ASCAP gets its fee’s from the game producer who then pass’s the additional costs to the end user. I would think the bar could even charge folks to play the game and not have to cough up additional money to the song writers.
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Ima Fish (profile), 15 Dec 2009 @ 7:38am

Because the whole notion is so utterly absurd, I was going to write a satirical piece about this very topic a couple of years ago. I decided it was only a matter of time before it actually came true so I dropped it.
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Ryan, 15 Dec 2009 @ 7:53am

heh
How long until they go after those who sing in the shower?
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Lobo Santo's Ugly Cat, 15 Dec 2009 @ 7:54am

Re: I guess i am lost
Yup, you are lost.

The license is for individual, not commercial use. By using it in a bar, it is effectively a public performance, different from a home use.

Mike, it doesn't matter WHY the patrons are enjoying the music (play or just listening to it), the effect is the same. Try playing the game without music, it's pretty dull!
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Ima Fish (profile), 15 Dec 2009 @ 8:02am

Re: Re: I guess i am lost
"By using it in a bar, it is effectively a public performance, different from a home use...."

Agreed, and if there's a stable within listening distance, those horses better pay up too!
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milrtime83, 15 Dec 2009 @ 8:05am

Re: Re: I guess i am lost
Except they are referring to the arcade version of Guitar hero which is most definitely for commercial use.
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moore850, 15 Dec 2009 @ 8:05am

Re: Re: I guess i am lost
OR, guitar hero could use non-ASCAP music. Do you know how many thousands of bands exist that are not ASCAP licensed? Sure, you won't have the major bands, but who cares? At least you can play the thing.
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Ryan, 15 Dec 2009 @ 8:07am

Re: Re: I guess i am lost
Try playing the game without a display device; now that would be dull. I know that I for one send out checks every time I play video games in a bar to the tv device manufacturer that we all enjoy watching, not to mention the chair makers that we can all sit on without discretion, and the artists that designed the wallpaper that without which the venue would be so aesthetically unpleasant. All the other contributors to the Guitar Hero game need to get their hand in the kitty as well; it doesn't matter if we enjoy the animations in the background, those guys definitely need to get paid for it. I mean, the selection of music is completely arbitrary and ultimately quite pointless in terms of making a good game, but the actual game coders and producers were the ones that created an innovated contribution to the public - they get the lion's share.
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DS, 15 Dec 2009 @ 8:09am

Re: Re: I guess i am lost
Does this also go for every Walmart, Best Buy, Target, etc that has a demo of the game?

Or what if I have friends over?

Or my windows are down?
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aguywhoneedstenbucks (profile), 15 Dec 2009 @ 8:13am

Maybe there should be a new edition of Rockband
Rockband: The Indie edition. Include artists who do not have relationships with any of the royalty collection agencies. I know plenty of people who would sign up to have their music heard.
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Guitar Zero, 15 Dec 2009 @ 8:16am

A couple scenarios for proper payment of these royalties.
1. Royalties are only paid on songs that achieve a perfect score.
2. All other scores should be either : i.) considered a derivative work and therefore subject to different rates. ii.) a partial representation of the original work and subject to a reduced fee. You only got 53% of that song correct, here is your 53% bill.
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chris (profile), 15 Dec 2009 @ 8:21am

Re: Re: Re: I guess i am lost
Or what if I have friends over?

Or my windows are down?

better buy two licenses. just to be safe.
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KevinJ (profile), 15 Dec 2009 @ 8:24am

Re: Re: I guess i am lost
Ever hear of an arcade machine? They've been around for a few decades, and the makers of Guitar Hero actually put out an arcade version of the game. And with a price tag of about $8,000 for a new machine I'm guessing they are meant for commercial use. So, are you claiming that an arcade game meant for commercial use isn't licensed for commercial use?
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Lobo Santo's Ugly Ferret, 15 Dec 2009 @ 8:30am

Re: Re: Re: I guess i am lost
Standard stupid mixing of ideas there Ryan:

When you buy the video monitor, you are paying for the whole thing. When you use music, you are paying for a use, not ownership.

If you want to pay a few million dollars for a single version of Guitar Hero, I am sure there are bands that would sell you their songs (probably $10,000 - $20,000 a crack) and that still wouldn't give you resale rights.

Stop making the mistake of confusing ownership with license rights. It's a foolish concept.
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Lobo Santo's Ugly Ferret, 15 Dec 2009 @ 8:31am

Re: Re: Re: I guess i am lost
No, what people are saying is that the home version isn't licensed for commercial use.

*sigh*
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Yakko Warner, 15 Dec 2009 @ 8:35am

Re: Re: Re: I guess i am lost
I'm sure having friends over would be a "private performance" rather than "public", but it wouldn't surprise me if one or more of these music licensing companies tried going after people playing music at parties (whether from a game or from a CD in the stereo) in their own home anyway.

The Best Buy demo is an interesting question, though.

For that matter, have they gone after department stores that sell stereos or sound systems, for having those devices playing music?

What about the TV departments that play movies on their wall of TVs? Is the MPAA missing out on a revenue stream there?

Or maybe I shouldn't joke about that...
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Anonymous Coward, 15 Dec 2009 @ 8:42am

Re: Re: Re: Re: I guess i am lost
No, what YOU'RE saying is that the home version isn't for commercial use. The ARTICLE in question is talking about the ARCADE version, which would presumably be for commercial use.
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Dark Helmet (profile), 15 Dec 2009 @ 8:43am

Re: Re: Re: Re: I guess i am lost
"When you buy the video monitor, you are paying for the whole thing. When you use music, you are paying for a use, not ownership."

That gets said a lot, and while I'm sure it's true it raises a question:

Where is this stated? Is it on display somwhere on the CD packaging where I can read it before I buy it for CDs? Is it on the box or packaging of the video game where I can read it before I buy it?

It seems to me that, given that there are several different licenses and not all bands/artists/labels/etc. require the same licenses for different things, that it's reasonable for the consumer to expect to be informed about what they're buying and what stipulations are involved BEFORE buying. I mean, you can't sell someone something with no upfront stipulations and then suddenly start dictating what they do with it after the fact, like say on the inside of the cd label where it previously couldn't be seen.

I'm not saying that this is what's currently happening; it's been so long since I've bought a CD or videogame that I just don't know. But it seems evident that if you ask most people what they bought from Best Buy with their Christmas gift card, they're going to say, "I got the new Killers CD", rather than "I got the residential limited license to play the new Killers music".

If labels REALLY wanted to stop the infringement of their licenses like in this case, shouldn't they do a better job of promenently informing their customers what they're buying?
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Rob, 15 Dec 2009 @ 8:44am

Correct me if I'm wrong, but aren't Guitar Hero/Rock Band song played by Guitar Hero/Rock Band staff (ie. not the original band) and therefore is a cover band? Does one need to pay royalties to the original band if one is listening to a cover?
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KevinJ (profile), 15 Dec 2009 @ 8:44am

Re: Re: Re: Re: I guess i am lost
But the bar is using the arcade version of Guitar Hero. If you follow the link about the demand for a license from the venue you will notice the post where this all started. It has a subject of "Any ops having problems with Guitar Hero arcade?" Now that appears to be asking about the arcade version of Guitar Hero, so why the talk about the home version?
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Dark Helmet (profile), 15 Dec 2009 @ 8:45am

Re: Re: Re: Re: I guess i am lost
"For that matter, have they gone after department stores that sell stereos or sound systems, for having those devices playing music?"

I'd be shocked if that sort of thing wasn't covered in their distributor's contract. Using images and likeness of a distributed product for in store promotional value is pretty common dist. contract language, from what I understand...
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Chuck Norris' Enemy (deceased) (profile), 15 Dec 2009 @ 8:54am

Re:
ASCAP is recouping songwriter royalties. So regardless of who is performing the songwriter believes they are owed money.
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Steve, 15 Dec 2009 @ 8:58am

Re: Re: Re: Re: I guess i am lost
I actually read through the post. This is an ARCADE version that he is talking about. You know, the version that you put into a public venue and people put quarters (or is it dollars now?) into it to play. Sounds like the ASCAP needs to go after the Arcade manufacturer if there is a licensing issue.
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Garry, 15 Dec 2009 @ 8:58am

How much longer before this guy is in trouble...
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Terry Hart (profile), 15 Dec 2009 @ 9:05am

Re: Re: Re: Re: Re: I guess i am lost
That would be exempted under 17 USC §110(7):
"(7) performance of a nondramatic musical work by a vending establishment open to the public at large without any direct or indirect admission charge, where the sole purpose of the performance is to promote the retail sale of copies or phonorecords of the work, or of the audiovisual or other devices utilized in such performance, and the performance is not transmitted beyond the place where the establishment is located and is within the immediate area where the sale is occurring"

@Rob - ASCAP collects royalties for the public performance of music compositions, regardless of who plays them.
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hmm, 15 Dec 2009 @ 9:10am

So does this mean all games from now on should just ship with music turned OFF, and only enabled if you enter credit card details?

I'd love to see someone try THAT business model to see how much theyd generate...
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JEDIDIAH, 15 Dec 2009 @ 9:11am

Re: Re: Re: I guess i am lost
Ok... so if there is a Guitar Hero machine in a venue that doesn't otherwise play music of any sort they have to start playing ASCAP fees now? So any arcade on the planet that has one of these machines is expected to pay ASCAP fees (or the local equivalent)?

Way to "double dip" there...
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Mechwarrior, 15 Dec 2009 @ 9:12am

Why isn't ASCAP going after DDR arcade machines, or Beatmania machines or the dozens of rythm arcade machines? Why only Guitar Hero?
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Jesse, 15 Dec 2009 @ 9:31am

The publishing house should be demanding royalties as well, for their software is being broadcast.
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Ray Beckerman (profile), 15 Dec 2009 @ 9:32am

Great article
Great article. Hope ASCAP gets its comeuppance one of these days, and I would love to be the one to give it to them.
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jsl4980 (profile), 15 Dec 2009 @ 9:50am

This would really suck if they went after bars who do Rock Band nights. I've been to a few and they're a ton of fun. I'm definitely not there for the music, more for the embarrassment of all the "performers" who are as bad as I am.
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herodotus (profile), 15 Dec 2009 @ 9:54am

"If labels REALLY wanted to stop the infringement of their licenses like in this case, shouldn't they do a better job of prominently informing their customers what they're buying?"

It's kind of like shrinkwrap software licenses. You get the impression that they are trying to pull a fast one on their customers.

But that's wrong of course. It is the citizens job to understand and be informed about the arcana of IP law before they buy anything. If they don't like the restrictive and unintuitive licenses that are underhandedly attached to all of the stuff they buy, they shouldn't buy stuff.

It's that simple.

All of you slashdot-reading freetards just pretend that it's complex so that you can steal stuff with a clean conscience.

COMMIES!!
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Dark Helmet (profile), 15 Dec 2009 @ 10:08am

Re:
"All of you slashdot-reading freetards just pretend that it's complex so that you can steal stuff with a clean conscience."

You forgot that we all just want something for free, the only word we know in the English language is "draconian", and we all have an overwhelming sense of fake moral outrage....
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Hephaestus (profile), 15 Dec 2009 @ 10:20am

Re:
herodotus - I really like the name ... have we met before ???
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known coward, 15 Dec 2009 @ 10:48am

Re: Re:
and i read herodotus' comments as sarcasm.

I am thinking the Fed's are going to have to step in and give clear and concise law as to what is licensed and what is not. ( I am not being sarcastic, just living in fairy land) When i buy a box with a game in it, in my naivety, i think I own it. They have my money and I have their product. As long as i do not copy it and resell those copies i should be able to do whatever the fuck i want with it. Otherwise do not sell it to the public.
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Hephaestus (profile), 15 Dec 2009 @ 10:55am

Now for some interesting concepts ...
ASCAP is demanding a licensing fee for the music in a commercial video game in a commercial setting. This is yet another example of a collection agency pushing the boundries. It happens in both what constitutes a public performance and ever increasing fees. With ever increasing fees people will begin finding alternatives cutting the collection agencies off. This has already happened in bars and clubs in Australia.

Eventually a Critical threshold will be reached where it is common knowledge that there are alternatives to the record labels and collection agencies. At that point a catastrophic failure will occur in the corporate music industry. Money will flow very rapidly from the record labels to the Independants, reshaping the entire music industry.
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Dark Helmet (profile), 15 Dec 2009 @ 10:58am

Re: Re: Re:
"and i read herodotus' comments as sarcasm."

Me too. The sarcasm was simply incomplete. I am more than happy to educate others on how to reach that ultimate level of sarcasm, such that instead of retorting, your adversary simply wilts into alternating fits of tears and defecations.

Signed,

Dr. Dark Helmet
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Farley Zoober, 15 Dec 2009 @ 10:59am

Rage against the machine!
Ooops, I better pay up.

I suggest the passive-aggressive approach. Only play Guitar Hero songs that you already own legally. Then, challenge those jerks at ASCAP and counter-sue. Ask for punitive damages. Bring your CDs to court. Buy old vinyl at yard sales and download digital copies. Call the cretins' bluff!!
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., 15 Dec 2009 @ 11:21am

Don't play anything.
Don't play anything and put a very big sign explaining why.

Or make a "ASCAP Freezone" and put on the door :)
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Anonymous Coward, 15 Dec 2009 @ 11:38am

Re: Re: Re: Re: Re: I guess i am lost
Renting, not buying.
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Alan Gerow (profile), 15 Dec 2009 @ 11:51am

Re:
Probably because this is an arcade machine in a bar that doesn't pay AssCAP fees. It's probably more of a "fine, if you're a bar not paying our fees, then we'll find some other reason to make you pay. Hey, is that a Guitar Hero arcade machine over there?"
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Ispep, 15 Dec 2009 @ 12:33pm

Re: Re: Re: Re: I guess i am lost
@Yakko Warner - I'm not 100% sure on this but technically they're not suppose to show movies on TV's without approval from the label; at least not show it in it's entirety. I believe they can show short clips to demo it to a customer but they can't leave it running.

It's sort of like hold music. If you notice a lot of companies no longer have it. I believe they're not even allowed to broadcast a local radio station as their hold music either although I've noticed that some establishments will broadcast their XM which I don't believe falls under the same restrictions.
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IshmaelDS (profile), 15 Dec 2009 @ 1:19pm

Okay, really?
I hope i'm wrong and just clicked on the wrong link but is this "news" story really coming from a thread in a forum with 1 post and 1 response? I'm all for ganging up on the collection society's but I would like a little bit of evidence that this happened beyond 1 guy in a forum, if they are really going around the St. Louis area can we get a little corraborating(sp?) evidence?
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Richard (profile), 15 Dec 2009 @ 1:59pm

Re: Re: Re: Re: I guess i am lost
"If you want to pay a few million dollars for a single version of Guitar Hero, I am sure there are bands that would sell you their songs (probably $10,000 - $20,000 a crack) and that still wouldn't give you resale rights."

Once again an exaggerated view of the value of such things. In a free market things are worth what people will pay for them. The buyer sets the price not the seller. There is a word for the system where the seller gets to set the price - it's called a monopoly. It's generally recognised to be unfair and a bad idea.

The distinctions you talk of have been invented by music industry middle men as a means of lining their own pockets.
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Richard (profile), 15 Dec 2009 @ 2:22pm

Re: Re: Re: Re: I guess i am lost
The comment on the original article includes this:
"RT, Konami and Activision all took care of the licensing of GH for public venues. "

If this is true then ASCAP are simply wrong.
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Richard (profile), 15 Dec 2009 @ 3:22pm

Re:
On a side issue I notice that Eric Johnson (the guy whose song is playing on the Christmas lights hero video) had his career sidelined for several years because of disputes over contracts and copyrights. This copyright business really is really needed by artists isn't it? (like a hole in the head).
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athe, 15 Dec 2009 @ 3:47pm

Re: heh
Only in the locker room showers - in your own home, that's a "private" performance...
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Chargone (profile), 15 Dec 2009 @ 3:59pm

Re: Re: Re: Re: Re: Re: I guess i am lost
I'm hoping this is a joke, but for the humour impaired:

That's the point.
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harbingerofdoom (profile), 15 Dec 2009 @ 6:03pm

personally? i would be telling ascap to go pound sand.
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Nate (profile), 16 Dec 2009 @ 8:17am

Re:
Some Guitar Hero songs used to be sung by other bands but that changed with Guitar Hero World Tour. Not 100% sure about rockband.
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Gib Wallis, 16 Dec 2009 @ 11:50am

ASCAP is good for musicians because they ARE musicians
What ASCAP stands for? The American Society of Composers, Authors and Publishers.

Contrary to some commenters, the record labels are not ASCAP. Performance rights societies collect fees for performances of music.

The venue mentioned here is a bar that is using a game to encourage people to meet and drink and spend money there.

Clubs always need to find ways to bring people in, and a lot of these involve spending money. Redecorating requires a designer. New menus require chefs and supplies.

Musical entertainment requires payment to the songwriters.

The success of Guitar Hero and Rock Band etc. depend upon the songs. People buying the Beatles pack will complain about the song selection or compliment the inclusion of their favorite songs.

According to the original post, ASCAP told the venue they were using the games like a JukeBox. I haven't been there, but it seems likely the could be. Maybe they're not.

But I notice that the venue doesn't want to pay ASCAP for anything. I find it hard to believe they never play a radio or have a single local and unsigned artist who never ever sings a cover song that's under ASCAP's jurisdiction.

Regarding some of the bad arguments here... the exemption another commenter shared with us is for a department store having music playing for demonstration purposes of selling equipment. Department stores do not pay for that.

They do, however, pay for the Muzac in the elevator and the rest of the department store that is used to promote good feeling during a shopping experience.

That's really what ASCAP is doing in these situations -- going after people using music to promote their goods and services.

A nightclub will budget for promoters to organize events and bring people in. Songwriters deserve a piece of the pie for promoting venues just as any promotor or DJ if their music is used in this fashion. It's typical that music is devalued by the nightclub owners who will pay for a liquor license, a promotor, and bar renovations but somehow can't cough up a few hundred dollars a year for the music that makes the bad drinks, drinkable, the ugly patrons sexier, and the salty bar snacks edible.

ASCAP also has many services available to fledgeling songwriters and artists and all the fees that local venues pay help to underwrite those costs.

A venue that regularly uses music to make money shouldn't be so shocked that musicians (songwriters) want to be compensate for their work as well.

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Bob, 17 Dec 2009 @ 10:22am

Re:
Yes. I was in a full time classic rock cover band years ago, and we had to pay ASCAP/BMI a percentage every week that we performed. As other articles have noted, the cover band circuit was eventually crushed by constantly increasing ASCAP fees.

It is true ASCAP put many of us out of work as musicians.
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Chip, 18 Dec 2009 @ 3:57pm

What a bunch of turds.
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Josh, 22 Dec 2009 @ 1:49am

ASCAP is just a front
LMAO.. In the comments we have ASCAP being either the record industry crooks looking for extortion fees, but someone else claims they are songwriters and performers.

Then a full time classic rock cover band performer chimes in and relates how ASCAP put may musicians out of work.

I don't think ASCAP is a group of musicians putting themselves out of work, that's for sure...
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Becky, 23 Dec 2009 @ 10:59am

ASCAP licensing
So, is ASCAP going to come knocking on my front door on New Year's Eve to ensure that I have paid a licensing fee to allow my guests to play GuitarHero? Do I have to pay them a fee for singing in my shower this morning? Brings a whole new meaning to "the day the music died". (Crap, do I have to pay a fee for typing that?)

As a musician myself, I can confidently say that ASCAP and BMI have gotten completely ridiculous and distorted the whole purpose of a worker's union.
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Anonymous Coward, 2 Jan 2010 @ 8:01am

I can only break it down like this
Why would you pay for cable tv but not the right to listen to music...It's the same thing why do people safe guard motion pictures but not the music that makes those motion pictures interesting?
If it was your project you would want to get paid.
I think consumers need to stop passing the buck off on the little guy and fight for financial freedom
Purchasing the game only gets the game manufacturers the money which they then probably share a fraction of a cent.
Musicians have the right to make money
ASCAP can be beneficial I can say this as an artist.
Obviously the person that wrote this article is not so you can go with experience or just some idiot talking out his chocolate starfish
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Anonymous Coward, 2 Jan 2010 @ 8:20am

Re: heh
The problem is real artist aren't getting paid they are being robbed by the insdustry people like you and pseudo artists like beyonce who do things like
How bout if I come into your job and tell you what you can and cannot make and garnish 90 percent of your check you would bitch
The problem is the music industry is a joke and they are all thieves including 98 percvent of the people on tv
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melodic electronica ugo, 9 Jun 2011 @ 8:21am

Huh, small venues/bars don't have to pay a performing license to the PRO if the bands play their own material. it's an issue when the bands play covers.
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Steve, 11 Jun 2017 @ 12:10pm

Re: ASCAP is just a front
Everyone that works for ASCAP is either a composer or publisher. Therefore they own the rights to their material and can perform it anywhere they like. A lot of the smaller venues that could or did have live cover music cannot afford the annual licensing fees for ASCAP , BMI and SESAC so they don't have cover bands. Thus putting some cover bands out of work, especially in a smaller rural market where there are not a lot of venues to play. So in a roundabout way it does affect cover bands.
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