Copyrights/performances

[mandorookie]

I'm looking to start up a bluegrass band, but one subject has given me reason to hesitate. Performance copyrights. Big brother BMI is watching, you know. Does anyone have a clear grasp of the rules here? What is acceptable, what is not? Small time bands perform the big boys' music all the time... but how legal is it? Is my new band limited to the public domain, or is there a way to broaden the horizon a bit? I'm not looking to charge for our performances... heck, the audience may want compensation for enduring the experience! Any information would be greatly appreciated. Thanks!

Performance copyright fees have consistently been reported here as being the responsibility of the venue owner. #Their fees get distributed by a complex formula guaranteed to make money for everyone except the person who actually wrote the song.

[withak]

Performance copyright fees have consistently been reported here as being the responsibility of the venue owner. Their fees get distributed by a complex formula guaranteed to make money for everyone except the person who actually wrote the song.
Yeah, you only have to worry about paying fees if you record something that is copyrighted. For live performances, the venue will probably get a shakedown letter from BMI, if they haven't already.

[mandroid]

Ah , the benefits of Public domain folksongs are abundant.
nothing like a good 30 year old song. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/biggrin.gif
Revised: should that be 300 year old?
Gondwanaland the Devonian songbook! still not old enough?

http://www.mandolincafe.net/iB_html/non-cgi/emoticons/tounge.gif

[GTison]

what's 30 yrs got to do with it. I think copyrights are for the life of the owner and beyond if renewed or something.

[MrSrubas]

I thought copyrights were void (public domain) after 50 years.
I have never heard anything about 30.

[Atlanta Mando Mike]

Disney has gotten the copyright laws extended because they didn't want mickey mouse to be like Santa Clause or Uncle Sam. When some of the original Mickey cartoons were about to become public domain, they lobbied and helped get passed the Sonny Bono term Extension Act of 1998 which extended copyright to the life of the author plus 70 years for individuals and for corporations, 95 years from the year of first publication or 120 years from the year of creation-whichever is shorter. Some people believe whenever Mickey comes up for public domain then the extensions will continue.

[Atlanta Mando Mike]

you can always do what others before you have-take a PD song, change a word or chord, say you wrote it and rake in the royalties. AHHH, the American way.

[Paul Kotapish]

I think that you are conflating two issues here:

Copyright issues and Performance rights issues.

These are complicated issues, but here is a nutshell guide to what you can and can't do.

Copyright regulations govern how and when a song can be duplicated as written music or in various permanent recorded media. Performance right regulations govern the live performance of music.

Live Performance:

This is the trickiest issue in some ways, but for practical purposes, it isn't that big a problem for most performers, because the administration of performance royalties is handled by the regulating agencies via performance venues--not the performers themselves. In other words, it is the entity presenting the music--not the musicians--who are responsible for the licensing issues. The obvious exception to this is a gig that a band books, presents, and promotes on its own. If you hire a venue and put on a show, you then become liable for the licensing issues.

When a songwriter registers a song with ASCAP, BMI, or SESAC, they count on that agency to collect royalties for live performances of the song. The agencies, in turn, realizing that it would be impossible to track every rambling musician in the country, focus on demanding a cut of the proceeds from live-music venues. A public venue with live music typically must pay a fee to the licensing agencies to cover the royalties. Distribution of those royalties is bases on a complex formula that is weighted heavily towards artists with a lot of radio play. That is one reason that getting airplay for a song is so critical to financial success.

Whether Bill Monroe's estate is getting the proper royalty each time you perform "Rawhide" on stage is up to the venue and the licensing agency--not you. Bluegrass, blues, and trad-based music of all sorts is so tangential the mainstream of the music industry that songs in those idioms rarely catch a slice of the pie.

In practical terms, you are pretty much free to perform anything you want on stage, unless the venue specifically forbids the performance of licensed material. Some small coffeehouse-type venues get around the regulations and fees by requiring that their artists perform only public-domain or original numbers, but this is murky territory.

BTW, the performance rights regulations apply to playing recorded music in any public venue--restaurant, sandwich shop, club, airplane, amusement park, bowling center, aquarium, you-name-it--too. There are plenty of cases where a little coffeehouse got busted for playing CDs of local artists without a license, for example. Muzak is a system set up to cover all of the fees and control the playlist in public venues. Most venues go with Muzak to avoid the hassle of dealing with license issues, not because they like the sound of string-quartet versions of "Blue Moon of Kentucky."

Here's a very interesting and provocative essay by Harvey Reid on the problems with the current system:

http://www.woodpecker.com/writing/essays/royalty-politics.html

And here's another personal-experience tale from a performer:

http://www.woodpecker.com/writing/essays/phillips.html

To learn more about what ASCAP has to say for itself:

http://www.ascap.com/index.html

Recording:

You can record any previously recorded song as long as you pony up the requisite royalties. These royalties regulations were originally established for the player piano market and are still called "mechanical" royalties. I believe the current statutory rate is $.08 per item duplicated. The royalties are bases on units--CDs, cassesttes, LPs--actually manufactured rather than on units sold. In other words, if you press 1,000 CDs, you owe the composer of each song on the CD $80. If you press 2,000, each writer is due $160, and so on. If a songwriter has multiple songs on a recording, they are entitled to a cut for each song.

In the friendly world of traditional and folk music, songwriters are sometime willing to grant free use of their material, but that permission would need to be in writing before the obligation would lift.

The proponderance mechanical royalties are handled by the Harry Fox Agency. To get the full story, go to:

http://www.harryfox.com/

In cases where I have recorded songs or tunes by a composer not covered by Harry Fox, I have contacted the composer directly and sent them a check for what amount they would be entitled to. Believe me, they are always pleasantly surprised. In the current environment of homemade and DIY CD recording, manufacturing, and distribution, many recording artists willfully or ignorantly skip this step of the process.

BTW, the industry is still scrambling to find any coherent policy and attendant regulations for the collection and distribution of royalties from purely electronic distribution of MP3 and similar-format files. Because songwriters make most of their living from mechanical royalties, the specter of free file swapping is scary indeed.

Publishing:

Bascially, you can't publish a protected song in any form without written permission. Usually this comes along with an agreement to pay a certain statutory royalty based on the medium, the context, the production run, etc. It's easy to get publishing licenses for some songs (lots of small-time singer-songwriter stuff), virtually impossible for others (most of the Beatles catalog, for example). Getting permission to publish a song is a hassle, and it involves going directly to whoever currently owns the publishing rights. This is not always easily established, because often times these rights have been sold, swapped, or stolen.

[mrbook]

Very good post, Paul, but after reading the articles I'm worried about the club we will be playing at in about an hour and a half. The owner had his permits at the last club he owned, so I assume he paid up again. I've had ASCAP reps in the audience when we played,and I would hate to see anyone get in trouble. I would also like to see the composers of the songs we play (when they aren't traditional or our own) get something from the fees, but that is not likely to happen, I guess.

[Paul Kotapish]

mrbook,

I wouldn't worry about it too much. Unless you agreed to play only PD or original material, it's not up to you to manage the royalty arrangements. Clearly the owner knows about the licensing requirements and is either playing by the rules or gambling that the infraction is not going to catch the attention of the local licensing enforcers.

I take the view that any performance of tradition-based music is good for the living tradition as a whole. I think building a healthy fan base for the music is far more important that whatever paltry slice of the royalty pie might be getting lost in the proceedings. If you play some great songs by great songwriters and folks get excited by that, you are doing your job.

It's important to pay the royalties, but even more important that the music gets heard. Give credit where credit is due, pay your mechanicals, and support your favorite songwriters by buying their CDs.

[mrbook]

Paul,
Only half kidding about my worries, but the stories were well worth reading. As mentioned, having the ASCAP rep in the audience once when a friend and I played at Barnes & Noble - I knew he wasn't there to hear me play mandolin or sing - makes me aware that that they are out there to protect what they feel is their property. I had dealt with the same guy in my retail store a couple years earlier, although I will say that we did come to some terms after much discussion, and I did bring up the matter of who actually gets the money. Of course, it was not the people whose music could be heard in my store, although many people went out and bought their CDs after I played them.

I know it's the venue's responsibility, as it should be, but a lot of places we play are not making much money. I've seen a lot of small clubs close in the last few years, or even worse, drop live music in favor of djs or karaoke - or nothing at all. Last night, we played for tips - the only place I'll still do it, because the guy was the only one to hire us regularly when we started out years ago - but the meal I ate was the only one I saw served, and even his waitress wonders how he is making it. I like to see everyone do well - playing the small places for little money was what got us good enough to play for more money other places - but I would hate to see a struggling business hit with a hefty fine - and the right songwriters still wouldn't get anything.

[vkioulaphides]

Besides being a hack mandolinist in my (alas, too little) free time, I am a composer and member of ASCAP, a good, necessary, if also naturally complex institution.

That disclosed, I must say that one ought to clearly differentiate between the "hefty fines" levied in the case of copyright infringement and the cost of the "blanket agreements" by which venues are licensed: The former are, of course, partly punitive disincentives— the usual, "do the right thing OR ELSE!" kind of thing. The latter are truly minuscule amounts of money in most cases, and should be considered by any business owner as part of the cost of doing business. As such, licensing ought to be measured in cost/benefit terms, factoring in the value added to the overall customer experience by, ehm... better music than Muzak.

Having said all that, composers (being no more and no less generous than other folks) also give stuff away. For example: http://www.paperclipdesign.com/vk/ http://www.mandolincafe.net/iB_html/non-cgi/emoticons/wink.gif

[Paul Kotapish]

I must say that one ought to clearly differentiate between the "hefty fines" levied in the case of copyright infringement and the cost of the "blanket agreements" by which venues are licensed: The former are, of course, partly punitive disincentives— the usual, "do the right thing OR ELSE!" kind of thing. The latter are truly minuscule amounts of money in most cases, and should be considered by any business owner as part of the cost of doing business. As such, licensing ought to be measured in cost/benefit terms, factoring in the value added to the overall customer experience by, ehm... better music than Muzak.
vkioulaphides,

The fees vary quite a bit depending on the venue, but for a small coffeehouse they typically run between $1,000 to $1,500 a year by my last reckoning.

That's small potatoes to a big restaurant, but to a marginal business with minimum profit, it might make the difference between hosting live music or paying for the kids' medical insurance for a few months.

I would never advocate any position that screws songwriters or performers out of their just deserts, but I think we all know that the monies collected in alternative music venues such as coffeehouses and folk clubs are enriching Brittany Spears and Justin Timberlake more than the artists and composers whose work is actually being performed in such venues. I'd bet my last drachma that the estate of Vassilis Tsitsanis isn't seeing one obol of the fees collected at Greek restaurants featuring live bouzouki music, for example.

Let's hope we can all work towards educating ASCAP and BMI et al about some of the subtleties in the world of music.

PK

[vkioulaphides]

[QUOTE]" I'd bet my last drachma that the estate of Vassilis Tsitsanis isn't seeing one obol of the fees collected at Greek restaurants featuring live bouzouki music, for example."

Ha, ha... probably true! http://www.mandolincafe.net/iB_html/non-cgi/emoticons/biggrin.gif First of all, Paul, I must apologize by my unimaginative and lengthy user(sur)name; please just call me Victor.

In fact, by way of historical trivium, it was Tsitsanis who first tried to get something, ANYthing by way of royalties in the artist-hostile environment of Greek music, back in the 40's and 50's. Others, like Christos Papaioannou, fled to the U.S., embittered by the endless (and fruitless) bickering with corporations that saw absolutely no reason to pay for the artists' talents that made them —the companies!— fabulously wealthy.

I have, of course, no ethical argument with you; what you say is generally (and sadly) true. I happen to be, however, the manager of a rather large concert series in New York, which produces/presents some 100+ live performances per year; our total licensing costs for an entire season are far below $1,000—#a reasonable cost of doing business by any standard.

But, as ethics is not the issue, let us look at the economics of it all: If, as you report, the licensing fees are above what small businesses can afford, they will forego the cost by, ehm... playing muzak instead (for as much as both you and I may dislike it), or simply not have music at all. If this phenomenon rises to a "critical mass" level, ASCAP and BMI will have to lower their rates in order to not lose myriads of licensees.

I am also a composer; on my 2004, first quarter royalty statement, a spectacular entry for $5.32 for performances of my works in Denmark and The Netherlands, two countries I have never been in, nor hope to visit any time soon. Yes, let us get past the fact that $5.32 won't exactly send me running to the nearest Jaguar dealer; let us also bypass the fact that, in the middle of all the complex transactions, both ASCAP and the corresponding Danish/Dutch Composer's Associations took a little bite out of the "fruits of my labors". Still, bottom line: Our institutions, our professional associations, and our laws, work in truly remarkable, beneficial ways. Only a fool (or partisan enthusiast) would argue that they work p-e-r-f-e-c-t-l-y. But, as in all other matters economic: The fact that a system does not do EVERYthing it is hoped to do does not mean that it ought to do NOthing instead— or not exist at all.

I have blabbered entirely too long this morning. My apologies to all the hapless (and bored) readers. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/wink.gif

Have a good day, all.

Cheers,

Victor

[Paul Kotapish]

Victor,

Thanks for the always entertaining and informative posts.

From what I can gather, early recording companies ripped off virtually all of the artists on their various folk, tradional, ethnic, and so-called race imprints. Artists--such as Tsitsanis (a hero of mine, if you hadn't noticed in other posts)--savvy enough to realize they were getting a raw deal rarely prevailed.

As far as the collection of performance royalties goes, I suspect that we're in one of those best-of-a-lot-of-bad-options situations with the royalty fees. As former professional musician and as a believer in the power of collective bargaining for any trade, I'm all for protecting performer and composer rights.

Still, it rankles that there isn't some mechanism for differenting between those venues and performers that feature primarily cover versions of big-selling pop songs and those venues that champion small-time acoustic artists doing mostly traditional and original material.

Back when I was touring more, we routinely had to fill out an extensive form listing every piece of material we performed, who composed it, and who held the publishing and performance rights. I suppose that such specificity at every venue would be one way to circumvent the broad-brush--and unfair--system that currently exists.

[vkioulaphides]

Truly... http://www.mandolincafe.net/iB_html/non-cgi/emoticons/rock.gif

The only solution I can see is, again, economical: Years ago, I had a strange experience with BMI, while trying to procure a blanket agreement for a series of many, small-scale concerts. Surprisingly enough, they themselves turned a blind eye to all our efforts to comply! When, later, I inquired through a better-connected friend of mine in this business, he admitted grudgingly that the licencing fees —skimpy as they naturally would have been— "did not justify the labor-hours" that filing, entering, and tabulating would entail at BMI. Go figure...

By way of another, historical trivium: The Father-Of-Them(Us)-All, when it comes to licensing of live performances was... (*drumroll, please*)... Richard Strauss! And that, mind you, at a time when he stood at the apex of his career and could consequently command any, ANY licencing fee of producers/presenters for himself, blithely ignoring the needs of all other, lesser known composers.

On a smaller, local scale, Tsitsanis did the same in the milieu of the bouzouki-culture. Meanwhile, of course, innumerable others wasted away in abject poverty, selling trinkets out of tin-roof shops, playing little, local gigs until a day or two befory dying, or left at the mercy of Greece's meager, post-WWII social services. #http://www.mandolincafe.net/iB_html/non-cgi/emoticons/sad.gif

[mandroid]

New Kettle of Worms??
Does the IRS allow that Cost Of Doing Business,(ASCAP blanket fee) to be, as a business' expenses ; deductable?
just curious.
http://www.mandolincafe.net/iB_html/non-cgi/emoticons/rock.gif

[vkioulaphides]

mandroid, I'd ask an accountant. Since it is generally the venue that must have a blanket agreement with ASCAP and BMI, the expense is, as you say, a "cost of doing business" entry in their book-keeping. As such, the notion of "deductible", the way individuals apply it to our 1040, is not immediately transferable to corporations— even small ones, like the local food-and-beverage joint, offering live music. In their case, the IRS taxes their revenue minus "cost of goods sold" and several other significant items.

Bottom-line, however: I'm just a musician, about as clueless about our tax-code as the next man. Let's hope an accountant and MC-contributor chimes in.

[Zed]

Sorry to dredge this back up but i have a couple questions. We're about to start work on our 1st CD and it will be all covers of trad BG tunes. I've looked at the Harry Fox site and done some queries there. My questions are:

- How do you determine if a tune is truly in the public domain? Is there a definitive and authoritative source?

- Same question for actual original author... where do you go to find out?

Harry Fox lists several writers for every song i looked up. Some are licensed arrangements, others i'm not sure... but can't tell original author.

I can see that doing this the "right" way is going to be very costly for a small time outfit like us. FYI, Harry Fox has "limited quantity licensing" for 2500 units or less. The catches are a) you have to license a minimum of 500 recordings, and b) that coupled with a $10 "processing fee" per song ads up real fast (at the current statutory rate of 8.5 cents per).

For example for us to put out a 12 song CD where all 12 songs had to be licensed, it would cost us $630 (to print up to 500 CDs). Maybe that's hay for some people but for us, it's a total show stopper (or CD stopper as the case may be).

I'd like to hear from anyone who's gone thru this process. PM me if you'd like. I need some real answers.

[Fuzzyway]

Zeek,

Have you tried looking at this listing of PD tunes?.

http://www.pdinfo.com/

Fuzzy

If it's a small venue you won't have a problem. But the bigger venues where mass poeple and money are, you might have some problems.I wouldn't record anything for sale that is not legal. If it's for your own use though i would go for it.