Dealing With Artist's Right's Organizations

[John Flynn]

OK, I know the high level of what these organizations do and I support the basic intent. I have visited thier websites and read as much as I can absorb. But thier rhetoric seems to raise more questions than it answers. Let me say that I am a long time, dedicated amatuer musician who has never had to deal with any of this before.

Can anyone give me a nickel tour, in layman's terms, of what an amatuer musician needs to know about dealing with these organizations in terms of performing tunes, recording tunes, posting tunes on the web, etc. Some of the tune searches I did on these sites list tunes that I know are traditional. How can they protect traditional stuff? How do you find out about whether a tune is in the public domain with any certainty? It would almost seem you have to get a clearance from one of these organizations to play any music at all! And what if a tune is listed with multiple organizations? Thanks in advance.

[J. Mark Lane]

A quicky, 'cause I gotta run to work.

First, the RIAA is not an "artist rights organization." It's the recording industry group.

The others are performance rights groups. As a performer, you basically don't have to deal with these groups. That is the responsibility of the venue. The venues (concert halls, bars, restaurants, etc.) generally pay set fees to the groups, allowing people (you) to perform covers of tunes by artists registered with them.

For mechanical and digital rights, you need to either go to Harry Fox Agency, or to the publisher, or in some cases to the artist. It all depends on who is handling these rights. "Big names" generally contract with HFA or someone to manage their mechanical rights. Smaller artists either let their publisher do it, or handle it themselves. (Lots of people just write to the artist and get permission.) It takes a little research for each tune.

What you encountered with multiple listings and listings of PD songs is probably arrangements. (Also, of course, actual recordings, which are of course protected as such.) That doesn't take a PD song out of the PD.

As for figuring out whether a song is public domain, yes, there can be a certain amount of guesswork involved. Some songs are known to be PD ("Soldier's Joy," for example), while others may be sort of in a gray area.

My own approach (as a lawyer with some IP knowledge) is to focus largely on known public domain material, and to try writing original material. Can't say I've accomplished much, but as a philosophical matter, that is my approach. Beyond that, there are some artists I feel confident I can contact and communicate directly with. And then there are the clear-cut songs that are registered with HFA. Gray area, well, I reckon you take your chances.

I think most "violations" go unnoticed, fwiw. And those that do get noticed, most of the time there is a letter from a lawyer requesting you to correct the matter, which would be easy enough for an Internet publication of a tune, but with a CD would require stopping distribution, and possibly paying royalties for those already distributed.

Gotta run....

Mark

[John Flynn]

J. Mark:

Thanks a whole bunch! That was very helpful. That pretty much answered my question, but I would welcome any other inputs also.

[Dru Lee Parsec]

Regarding the RIAA: They are probably the worse thing to happen to the actual "artist". Here are a few points of view of the record industry from the artist point of view:

http://www.janisian.com/article-internet_debacle.html
http://www.janisian.com/article-fallout.html
http://dir.salon.com/tech/feature/2000/06/14/love/index.html

The RIAA represents the interest of the record company, not the artist.

BMI and ASCAP are suppose to protect the rights of song writers. What they intend to do is to make sure that the artist gets paid when people record and play their songs. For example, a radio station plays a song that radio station pays a few cents for every song in fees to BMI and ASCAP. Those fees go to the songwriter.

However, BMI and ASCAP also take it upon themselves to "protect" the artist from having other bands perform their songs live. Now, this may make sense when you're watching Jethro Tull at a big stadium and they do a quick cover of a beatles song. Whoever owns the rights to the Beatles music (I think it's Michael Jackson) will get a few cents for the performance of that song. However, BMI and ASCAP have been going to small venues (like a local pizza place I know of) that support local bands and live music and threatening to sue these small businesses if they don't set up a fee payment schedule. What usually happens (and what did happen in the case of the pizza place I'm speaking of) is that rather than deal with fees, and attorneys and the possibility of doing somethign wrong by accident and getting sued and losing his business is that he just canceled all performances by the bands. So we lost what use to be a very supportive venue for seeing live music.

Another friend of mine who owns a small music store (musical instruments, not music CDs) was playing a CD on his stereo when some guys that alledgedly worked for BMI came in. "I hear you're playing one of our artist" one of them said. "Have you set up a fee payment schedule which allows you to legally play that CD in a public place?"

My friend simply turned off the stereo and asked to see their business cards. After that he asked to see a photo ID to insure that they were the people on the business card. He then asked eachof them for their manager's name and his phone number. Then he asked the questin that really nailed them: "And one last thing. Who was the artist I was playing when you walked in, what record label are they on, and are they a BMI or ASCAP artist?" They couldn't answer because they didn't know. They were just trying to strong arm him into fee payment with BMI. So he asked them to leave his shop and told them that they were not welcome in his store any more. He hasn't heard another word out of BMI since.

My grandfather was a great musician who had his own big band back in the 40's and 50's in Ohio. His advice to me many many years ago was "Don't join the musician's union, try for a record contract, or join BMI or ASCAP until you've built your music career to a point where you can't go any further without joining these organizations". I think it was good advice.

[August Watters]

Two of my favorite local open mic venues -- small pizza joints that used to have local songwriters -- no longer have music because their owners were strongarmed in a similar way. Yes, the actual fee rates are not exhorbitant and are clearly posted on the websites -- but these "enforcers" operate on a commission basis, so they've been known to exaggerate a venue's liability and assume a hostile standpoint that scares owners into firing the musicians. Think about that the next time you wonder where there aren't more local places to hear music!

I think the solution is that small venue owners need to know their rights and responsibilities, so they know how to field any unreasonable demands.

[docmarc2771]

I can't recommend this solution to anyone - but, because I was present when the incident occurred, I know it worked. Very small country town in northwestern Illinois...acoustic open mic every other week in the banquet hall of a main street saloon...2 'goons' who dressed like Tony Soprano came from the big city to inform the bar owner that 'he had to pay ASCAP/SESAC, etc., $400 a year to hold an open mic night...note that none of the musicians are paid and there is no charge to the audience to listen...the bar owner is about 6'40 and 260 lbs and a steelworker by day...he pondered the request for about 5 seconds, leaned over the bar and calmly told them "...you boys had better leave here now or you're going to find this was the worst day of your lives"...never seen them since...

[TonyP.]

Boy I hope 'ol J.Mark comes back and looks this stuff over and has some suggestions about what you could tell a local owner he could do to protect himself, or his rights. I've heard/seen this happen and the places usually go away. It is weird to note also they haven't shut down all the coffee houses and stuff that seem to have the same clique of hired gun jazz guys......BG conspiracy? Is the nice steel worker for hire?

[J. Mark Lane]

Well, Tony, I really don't have any answers there. Personally, I think the best solution is to have legislation that would change the way performance rights are dealt with for small venues. Perhaps having a blanket exception for small venues, under a certain seating capacity.

I also think (absent the above) some legislative solution to the "enforcer" issue would be a good idea -- perhaps eliminate any commission fro performance right fees for "enforcers," and mandate the way venues are advised of the situation. A mandated written communication where the venue has been observed to be hosting live music involving covers but has not paid the applicable fees. A written communication can be shown to a court or whatever. It's contents can be regulated. If the venue fails to respond properly, then the legal process can be used. But the "personal confrontation" method should probably be outlawed, with stiff civil fines or criminal penalties for violation of that ban.

Without some fundamental change, the only way I can think of for small venues to be protected is for them to know what the rules are, and to abide by them. The information is relatively easy to get, and the fees are not that high. It is sad that venues stop offering live music rather than comply, but I understand it. That's the world we live in, for now. Unfortunately.

Mark

[John Flynn]

Two questions I have reading all this is:

1) Even if you square yourself with one of these organizations, could you possibly still be afoul of another one? Could multiple organizations lay claim to the same venue?

2) Closer to home: A lot of people post sound files of themselves playing a tune on thier web sites. What potiential liability could they have? And what about sheet music and tab?

[J. Mark Lane]

Yes, you can be "square" with one organization and not with another. #That's why you see bars and so forth with ASCAP and BMI stickers on the door. There could also be artists who don't use either of the organizations, but those are not likely to be "policing" their performance rights.

As for having a website and posting a tune, I assume you are talking about a tune you didn't write that is subject to copyright protection. #With certain very limited exceptions relating to Fair Use, yes, you have to get the rights to do that, or you subject yourself to legal action (and possibly having to pay the legal fees of the owner of the rights, as well). #This is a mechanical right, not a performance right. #Mechanical rights are mandatory (that is, you cannot be refused) for any tune previously recorded. #You just have to pay the fee. #This is all explained on the HFA website (and on the US Copyright Office website, as well).

I don't really know what you mean by sheet music and tab. #What about it?

[Brian Ray]

BMI, ASCAP and SESAC can all collect from establishments that play music. If you're worried about it, you can play radio for free (since radio is paying for the public performance already).

As for affiliating yourself with one of these companies... if your music will be played on radio, tv, movie, etc..., then you would likely want to join.

For instance, I joined BMI because my band had a record deal and was releasing our first record. We had meetings with both BMI and Ascap and chose BMI because they attempted to tell us why they were good for us. Ascap just bad-mouthed BMI. Does it matter which you choose? I doubt it.

Is this a scam? Yes and no. Is the Pizza place owner making money off you and the music you play for free? Most likely...

[John Flynn]

I don't really know what you mean by sheet music and tab. What about it?

A lot of sites have free sheet music and tab, sometimes for tunes that are not in the public domain. Do they owe somebody for that?

[J. Mark Lane]

A lot of sites have free sheet music and tab, sometimes for tunes that are not in the public domain. Do they owe somebody for that?
Of course. You can't just publish someone else's music without their permission. Those tab/music sites have had no end of trouble. Remember all the mess with OLGA?

[TonyP.]

I appreciate your feedback J.Mark because what seems easy to understand for you is just gobblygook to others. And that's what I get when I try to read some of that stuff. By the stories and the reactions of said enforcers it just IS a shakedown. I've talked to a couple of major(in my book) songwriters to ask permission to use their songs and they've acted more flattered than anything. And they all have stories of hearing their music done by others on cd's and radio and never receiving a penny. The reality is we live in a world where the untalented leeches have garnered the power to control the talented and narrow the access to keep truly talented obscure. I remember back at the dawn of the explosion of the net where there was a consortium of EU lawyers that wanted to revolutionize the music industry by cutting out the middle man, mainly the "music" companies. You would go into a store that was basically a bunch of hi-speed terminals with headphones and you would surf and listen to bands and artists that were part of the stores co-op and pick out music. It would be burned along with the cover and assembled instore and when you paid the guy the band got their share and the store took a cut. Never heard anything else, just to whole thing of the "crackdown" on downloading. Most of it was not artists spearheading it( I guess there was Metalica), it was those music corporations who knew they were fighting for their lives. Most of this supposed "law" doesn't do anything for the poor ol musician, it's just for the leeches/bureaucrats. The proof is if you talk to any hasbeens of the music industry all of them are broke, the leeches got it all. I love that Ricky Skaggs says he's making more $ now that he has his own label, doing Bluegrass!, than during his stardom days as a country star. It really helps to be armed with the info to tell some small venue, when he says the music mafia are on his butt, hey, we only do originals and PD's and neither of us are libel! Unless you do some big hits that everybody knows, those goons obviously don't know!