ASCAP/BMI [Archive] - Mandolin Cafe Forum

Dru Lee Parsec

Jan-27-2005, 6:39pm

There are several small venues in the San Diego area (Pizza places, coffee shops) who have had to stop supporting live music because ASCAP threatened to shut down these small business owners if they continued to have bands that played ASCAP licensed music without paying a fee.

OK, I understand that song writers need to get paid, but I think there's a difference between a radio station paying ASCAP and BMI fees and a coffee shop having to pay because some guy with a guitar sings a Willie Nelson tune at an open mic night. #There's got to be a reasonable limit here. #Concert venues? Sure, they should pay the song writers, Radio Stations? Sure. #Clubs? #Maybe we should have a size limit like "if the room occupancy is over 200 people then it needs to pay a reasonable fee".

But shutting down open mic nights and the ability of local bands to play at your local pizza parlour does nothing to promote or support songwriters. #Look, If you're writing a paper for college you can quote copywrited material as a reference. #It's called "Fair Use". You'd think that the publishing rights companies could come up with a "Fair Use" policy that doesn't crush garage bands and coffee shops under the weight of litigation and contract fees.

For what it's worth, BMI is NOT harrassing small businesses as far as I've heard. #It seems to only be ASCAP.

Keith Erickson

Jan-27-2005, 6:51pm

So one of the little places we have been playing is on hold until they get some kind of agreement with the powers that be to allow the perfomance of copywritten material.

You've got to be kidding me. Are you for real? http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mad.gif

I remember hangin' out in bars and playing other peoples stuff and there was no question that we were not going to take credit for stuff that wasn't ours. We were just paying tribute to the good folks who wrote the songs originally. In one instance, I was hanging out down in Barbados and played "Broon's Bane" from Rush and played "Patience" from Guns'n'Roses in some bar. Everyone had a great time. It's not like I did the "Napster" thing.

I can't wait for the day when local police departments start busting the local teens at battle of the bands nights over copyright laws. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/laugh.gif

I can't believe we live in America http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mad.gif

J. Mark Lane

Jan-27-2005, 7:33pm

Good grief.

I try to stay out of these discussions, because they invariably end up heated, as there are radically different views about copyright laws.

But let's be clear: No one is trying to "shut down" anyone, and this *is* America -- the land where people are allowed to *own* things, including their own artistic creations.

Artists don't have to register with ASCAP or BMI. They choose to (or not). And if they choose to, then that means they want the agency to oversee the licensing of performances of their music. And it is just as much a violation of their copyrights to play covers in a club without paying a fee as it would be to record their material on a CD and sell it. Attribution is not the issue; compensation for use of someone else's material is the issue.

And let's be clear about one other thing: it ain't like clubs are required to pay huge fees. The costs to register with ASCAP or BMI are modest, and are particularly low for small clubs. Lots of clubs (and coffee houses and so forth) don't like it, for philosophical reasons of their own. But they can blame the artists who wrote the songs, and the United States Constitution (which provides for the protection of copyrights), and Congress (who enacted the laws that extend copyright protection to music). If enough people don't like it, the law can be changed. But for now, it is what it is, and artists have the right to be paid for the use of their work, in a live setting or otherwise.

For those who lack an understanding of copyright law, the United States Copyright Office has a tremendous website, written for the lay person to read. ASCAP and BMI also have excellent websites.

For those who don't like all of this, I suggest playing public domain music. There sure is a lot of it out there.

Mark

GTison

Jan-27-2005, 7:35pm

It happened in my town also a local coffee shop as well. For some reason I think it IS ASCAP. And I hear they are the worst about paying royalties to bluegrass artist also! I signed mine on BMI. They can also demand fees for music on hold.

J. Mark Lane

Jan-27-2005, 7:35pm

Oh, and John, yes -- they do "go after" clubs where live performances are given. And whether those performances are "free" or paid is irrelevant -- just like it is irrelevant for all other copyright purposes. (You can no more copy a copyrighted CD and *give* it away than you can copy it and sell it; both actions violate the Copyright Act.) If you are licensing your material through ASCAP, you surely should know this.

Mark

John Craton

Jan-27-2005, 7:54pm

I think Mark pretty much said it all. And I did go back and review the licensing agreement with ASCAP. I was mistaken that not-for-profit concerts may waive the license, but instead schools, clubs, etc. who sponsor them pay a "blanket" fee to cover all ASCAP works they may perform. As Mark said, these fees are quite modest (though surely some would argue the definition of "modest"). That's all I'm going to say on the matter -- I really just wanted some clarification. I'm merely the lowly composer on this totem pole -- and trust me, it ain't us who're getting rich. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/tounge.gif

Michael H Geimer

Jan-27-2005, 8:03pm

I don't have much trouble with the concept of copyright, but IMHO we've fallen down badly on the administration side.

As I understand it, there are several major obstacles to 'fair behaviour' ... once again fair IMO.

First and foremost is the legal support given to 'sampling' as a means of allocating performance royalties. Large national playlists are the prime source of sampling information, so unless your original tune is getting national airplay, you might not get ANY performance royalties. No wonder BG artists are complainging!

Second, it is not ASCAP's or BMI's policy to sell licenses to offenders after they are caught. So, if your local coffee house gets 'busted', they will need to pay far more than a normal license. Instead they will be changed excaggerated rates based on 'a la carte' charges ... or go to court.

Lastly, I have heard many tales of people attempting to defend PD material, only to have the administers argue that 'Keep My Skillet Good n Greasy' is in fact copywritten by Timmy O ... there it is on there books, recorded for the 'Songs from the Mountain' CD. A small venue will cave in to the fees rather than take the much more expensive route of going to court defending a PD claim for some guy singing folk on Sunday afternoons.

The way I see it copyright law is pretty much about protecting corporate assets, not about protecting artist's assets. Artists don't choose to be on ASCAP and BMI ... they choose between ASCAP and BMI or the labels won't release their work.

/rant

- Benig

Harry H

Jan-27-2005, 8:26pm

So what's a 'modest' fee for a small club? $100 per year?
Who knows? J. Mark, oh great one, doth thou knowest?

J. Mark Lane

Jan-27-2005, 8:34pm

Benig,

I really don't know what you're talking about re sampling. Perhaps you can enlighten me?

As for the heavy-handed enforcement tactics, I have heard stories like that occasionally. There is probably some truth in them. But I don't think I've ever heard that kind of story first hand. It's always something somebody heard that somebody said etc. There is of course a big difference between a copyright that exists for a recording of a public domain tune, and a copyright for the creation of an original tune. But then there are variations that rise to the level of becoming newly copyrightable. So there is some "gray area" there. Sadly, when someone oversteps, it can in fact be costly and difficult to set them right again. There's not much that can be said about that, I guess. It's an imperfect world.

As for "corporate" greed etc., well, it's all a matter of perspective. I certainly agree that the music industry includes some pretty obnoxious people (I won't name names, but a certain company that begins with "S" and ends with "Y" and has the letters "O" and "N" in the middle is a major culprit, imo <G>). But the way I see it, the world is changing around them, and well, ...the old road is rapidly aging, so to speak. The new electronic media, and the (forgive the metaphor, but I can't resist it) tsunami-like changes in music distribution that are taking place right under our noses, are going to shake their windows and rattle their walls. (Man, I'm getting out of control here.)

Anyway, what I'm getting at is, I think there will be HUGE changes in music copyright treatment in the next few years. It's inevitable. Their sons and daughters are beyond their command (damn, I can't stop). So, I remain optimistic. I was just trying to clarify a couple of simple points about the reality of the world we currently live in. Your points, which go one step further, are well taken.

Mark

J. Mark Lane

Jan-27-2005, 8:41pm

Yes, Harry my Brother, I think that's about right. It might be a little more than that. It varies pretty dramatically depending on lots of factors. ASCAP doesn't post the fees on their website (I've looked before, and I looked again just now). I've learned of specific fees in connection with specific venues that I was dealing with, and I know they were fairly modest. I would consider a $200 a year fee fairly modest for a club that seats up to 100 and has live music at least one night a week. But obviously, it is a matter of perspective. There's some general information here:

http://www.ascap.com/licensing/generalfaq.html

Why do you ask? One of your, uh, clients...uh, breaking the law, or something? Eh? He he he.

Mark

OlderThanWillie

Jan-27-2005, 9:03pm

Here's a story about a song that you thought was in the public domain:

The Clayton F. Summy Company, working with Jessica Hill, published and copyrighted "Happy Birthday" in 1935. Under the laws in effect at the time, the Hills' copyright would have expired after one 28-year term and a renewal of similar length, falling into public domain by 1991. However, the Copyright Act of 1976 extended the term of copyright protection to 75 years from date of publication, and the Copyright Term Extension Act of 1998 added another 20 years, so under current law the copyright protection of "Happy Birthday" will remain intact until at least 2030. #

Warner Chappell, the largest music publishing company in the world, got the rights to this when they bought what was The Clayton F. Summy Company in 1998 for a reported price of $25 million. They spun off the company as Summy-Birchard Music, which is now a part of AOL Time Warner. The song brings in about $2 million in royalties every year, with the proceeds split between Summy-Birchard and the Hill Foundation. Both Hill sisters died unmarried and childless, so their share of the royalties have presumably been going to charity or to nephew Archibald Hill ever since Patty Hill passed away in 1946.

If you sing this at a birthday party, you do not have to pay royalties, but anytime it is performed in public in front of a large gathering of people (like at a concert), a small performance license is required. This is normally issued in the US by 3 companies - ASCAP, BMI and SESAC. The Hill Foundation is a member of ASCAP. Companies that are required by law to have small performance licenses operate Radio Stations, TV Stations, Concert Venues, Restaurants and other Retail outlets over a certain square footage.

And to add another coal to the fire, a pizza house where we had a weekly bluegrass jam session had to shutdown the jam when the local musician's union complained that non-union musicians were performing and "entertaining" the pizza business' customers. They threatened to picket the pizza business and the owner didn't feel he wanted to lose customers over the issue.

Michael H Geimer

Jan-27-2005, 9:10pm

I think it is somewhere in the $200 - $400 range, and I agree that is reasonable. Note that two licenses are needed.

Sampling ... think U.S. Census. The idea that broader averages can be used to 'divide the pie'. So, say I get noticed playing a Gillian Welch song this weekend and the house has to cough up $$$ ... well, Ashley Simpson is still getting most of that because she can demonstrate more market share in this area. So niche artists can get 'averaged out', and never be properly counted or compensated. It's an imperfect world.

Mark Wrote:
"Anyway, what I'm getting at is, I think there will be HUGE changes in music copyright treatment in the next few years. #It's inevitable."

I totally agree. I'm just frustrated that current practice is so out of step with reality. Greater distribution shouldn't equate to more 'rights' than a small songwriter or composer. But the need to track incredibly large number of playlists forced the use of sampling for averages. I think there was a suit over this - much like the U.S. Census - where sampling was given the 'go code' from the courts ... but hey you're the lawyer here. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/smile.gif

As the lady sang ... something's gotta give, something's gotta give, something's gotta give.

- Benig

J. Mark Lane

Jan-27-2005, 9:18pm

Oh, *that* kind of sampling. I was all confused, because way back when a friend of mine did a paper on digital sampling of music in rap recordings, and there has been a bunch of law on that kind of "sampling," so whenever someone uses the word I think of that. But yes, the sampling you refer to is certainly not going to be "perfect." But how else could they work it?

As for "olderthanwillie," well, heck, if you wrote the song, you own it for the length of the statutory copyright...and that's that. As for unions, please don't get me started. Can you spell "pet peeve"? http://www.mandolincafe.net/iB_html/non-cgi/emoticons/biggrin.gif

Mark

John Craton

Jan-27-2005, 9:19pm

As the lady sang ... something's gotta give, something's gotta give, something's gotta give.
Hey, Benig, is that under copyight?? http://www.mandolincafe.net/iB_html/non-cgi/emoticons/laugh.gif

Michael H Geimer

Jan-27-2005, 9:37pm

"Hey, Benig, is that under copyight?? "

Nope ... it's just a sample. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/tounge.gif

I figured if I said 'Census' you'd get which definition I was using. As far as how else? [shrug] Maybe there could be limited secondary audits just for sufficiently small fries ... some manner of sorting the information again and this time letting all the BIG stuff fall out.

- Benig

J. Mark Lane

Jan-27-2005, 9:58pm

Yeah, I see. But I doubt it could be very accurate. There is such a huge diversity of what really happens in small venues, and so very very many things out there to be covered...lots of "little things" would "fall out" to the wrong result, and some would get unfairly overincluded.

Really (ducking here), the best way to deal with it is probably to just eliminate copyright protection for unrecorded live performances. Let people make their money distributing recordings, and performing their own material in concert, and let the rest of the world do as it pleases with the material in live settings. Put a few people out of business, though, wouldn't it?

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

Michael H Geimer

Jan-27-2005, 10:31pm

"Really (ducking here), the best way to deal with it is probably to just eliminate copyright protection for unrecorded live performances."

That's the general direction most of musing on this end taking. But, It all get's so thorny so quick. It will be interesting to watch at least, and many of us here might even get to participate.

Still, I sure hope my gig doesn't get squashed by The Man.

Milan Christi

Jan-27-2005, 11:54pm

Many years ago I was an "investigator" for ASCAP. I was hired to check out specific venues , perform my "investigation" ad then file a report. I was very impressed that the company would go to those lengths. I should add that none of my investigations led to a court appearance - all of the cases were handled between the venue and ASCAP.

It's a difficult line to draw. I'm a member of BMI and I appreciate the fact that they are looking out for my interests. At the same time I'd be flattered if someone was covering my tunes - to me it's like free advertising. But covering someone else's music without express permission or appropriate compensation is in violation of the law and can be litigated.

I haven't been involved with ASCAP for 20 years but since the time I worked for them (part-time, mind you) I still haven't been able to decipher a "middle ground" that would serve all the sides of the story. It's really a case of 'danged if you do and danged if you don't.'

mrbook

Jan-28-2005, 1:29am

Businesses have to pay for any music use, even playing the radio as well as recorded or live music. The songwriters should be paid, of course. The fees are usually reasonable, but many small businesses operate on a shoestring, and it might still seem like too much - and there are those who just don't want to pay anyone. When I have talked to ASCAP reps on the matter, the one thing that I didn't like was their admission that payments to songwriters for all venues - live or recorded - #are determined by radio playlists. It is quite likely that the fees collected from the place where you play will go to Michael Jackson rather than your favorite songwriters.
You will also find that someone somewhere has copyrighted their arrangement of a public domain song, so the clubs just can't get around it. Somewhere on this site I found a link to a list of public domain songs, but it was full of errors - I knew who wrote quite a few of the songs listed, and they weren't old enough to be out of copyright.

No one likes to pay. Several years ago, one church I belonged to had a problem when the minister tried to tell the choir that it wasn't right to buy one piece of sheet music and photocopy it for the whole group. Very good people, but they had a hard time seeing his point when it meant opening their wallets.

Keith Erickson

Jan-28-2005, 9:03am

And to add another coal to the fire, a pizza house where we had a weekly bluegrass jam session had to shutdown the jam when the local musician's union complained that non-union musicians were performing and "entertaining" the pizza business' customers. They threatened to picket the pizza business and the owner didn't feel he wanted to lose customers over the issue.

I'm sorry are we talking about the former Soviet Union or the United States of America? I forgot what countyr this is.:angry:

As for the other issue of closing down venues because of copyright laws, I would just say this," If you don't want other people to play your music, then don't publish the sheet music.

Could someone answer this: When will the lawyers, cops, FBI and ATF start showing up at high schools to start shutting down the "Battle of the Bands"? http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mad.gif

J. Mark Lane

Jan-28-2005, 9:49am

LOL, Keith I can see this subject really gets to you. Sorry. Don't blame the messenger...I'm just reporting the facts, M'am.

Re sheet music: irrelevant. If I write a song, I don't have to "write" it down; if I register a recording of it with the Copyright Office, I have an enforceable copyright. If I then register it with ASCAP, and you play it in a venue that doesn't pay ASCAP, you are in deep doo doo my friend. (Well, actually, the venue is.) Them's the facts.

As for the Soviet Union, I don't know for sure, but I strongly suspect they did not have copyright laws. You know, everybody owns everything, and all that.

This is the world of capitalism, Comrade. Maybe you prefer some other system? No problem. It's a free country. <would insert emoticon for irony here if there was one>

Mark

lindensensei

Jan-28-2005, 9:53am

Mark, I've been out of town and just got back to read your comments.

Well done.

But I have a question you might be able to help with as you seem to be informed. #I was asked to play mandolin to accompany a friend in a performance on a cruise. #They listed it as a talent show and I thought it might be fun. #It was. #We had a great time. #Later I found out they were selling copies of the performance for $20.00 a throw. #I complained that I had not given permission for the sales of my performance and yadadadadada.....

Here is my thought. #Not only was my performance being sold, but also the songs of Willie Nelson and John Prine. #Something hinky here??? #I'd love to hear your comments,

steve in tampa

Jan-28-2005, 10:07am

Theres some good input from ya'll there. Would love to just do original and P.D. material, and we have enough, but is more of a "give the people what they want" situation. The venue is outdoor Florida sunset over the water kind of thing, and the folks want songs they can sing along to like Jimmy Buffet, James Taylor, Van Morrison, etc. Looking for any advice on how to get back on the stage there. Looking for personal experience overcoming this type of obstacle, like how much it might cost the club, what the rates might be based on, turnaround time on getting the actual license, what kind of fines might be involved if it is ignored, etc. THe info on the ASCAP web site is very vague.

J. Mark Lane

Jan-28-2005, 10:25am

Steve,

I would suggest that the venue needs to contact an ASCAP rep. I have never done that, so I can't really offer personal experience.

Dan...one of the reasons I really don't like to get involved in these threads (despite appearances <g>) is that it always ends up with people asking me lots of specific legal questions. It's not that I don't want to help; but it's problematic for me to be giving out "legal advice" over someone else's discussion board.... It's also problematic for me to be giving out specific legal advice to people who are not formally my clients. I hate that, but that's the reality.

That said, it sounds like the cruise people are flaunting the law. I wouldn't want to say too much, but from what I have seen, this does not surprise me. What to do about it? Well, a lawyer letter is usually the place to start. Note that there could be some international issues, depending on where the cruise was, and what is being sold and where and how....

I would suggest contacting a local attorney familiar with copyright law. Seriously. Make some phone calls. Someone will talk to you....

Mark

John Craton

Jan-28-2005, 10:32am

I said I wasn't going to say anything else on this matter, but I lied. (Maybe I should go into politics? http://www.mandolincafe.net/iB_html/non-cgi/emoticons/tounge.gif )

Copyright laws and licensing agreements exist to protect the creator of the material (authors, playwrites, composers, songwrites, et al.) so that we can try and eke out a subsistence from our work. I'll admit first off that the system as it exists isn't perfect and definitely needs some major tweaking, but mayhaps it would help performers understand this whole mess a bit better if they could look at it from the composer's perspective. (I am a classical composer, so I'm not sure how far this illustration will go in relation to popular works, but here's my story.)

Let's suppose a group of musicians gets together and, for some inexplicable reason, decides to do a program of just my music. (An all-Craton gala -- would that it could happen.) Anyway, they select, say, four of my works and dutifully purchase the scores from a music store for, let's say, $100. They rehearse and sign a contract with an agency that lines up six venues for their program, and that agrees they will make (oh, let's make up a figure) $400 for each performance, plus a percentage of the box office. Because my music is so wildly popular (yeah, right), they sell out each performance, coming away in the end with something like $6k. That's money well earned and fully deserved.

But what about me, without whom the concerts could not have been given? If all I made on my music (which may have taken me a year to write) was what I get from the sale of the sheet music, then I'd come out of this with a whopping $10. Is there something wrong with that picture?

Yes, it seems annoying when performers have to share a part of their well-earned pay with someone else they've never even met. But how else are composers supposed to earn their keep? Some composers make money performing their own material. But others, like me, don't perform. (I had to give up public performing when I had an injury to one of my hands, so I couldn't go that route even if I wanted to.)

This is not to say that everything ASCAP, BMI, and the copyright police do is fully endorsed by me or by other composers. I do honestly think they go overboard at times. But then we have to balance that against the abuses (nay, theft) engaged in even by church choirs (see above). I know of a school district in another state that for a time (until they were caught) was buying one copy of each piece of sheet music they needed then photocopied it for all the other schools in their district, so that the composer, who sould have gotten hundreds or even thousands of dollars for his work, was reaping only a few measly bucks.

Sure, the system as it now stands is in need of some major revamping. I'm all for it. But I think it helps to understand the original purpose behind the laws and regulations, however abused they are at times by some major corporations. Let's all remember that in the music world, performers need composers and composers need performers. Far better that we stick together and help each other out than see each other as enemies. And as for the lawyers ... well, my next-door neighbor is one, so I'll be kind. Thankfully we also have a few attorneys out there who are also musicians, and maybe someday they can help us get this all straightened out to everyone's liking.

Ancient

Jan-28-2005, 11:02am

I play in a german restaurant and BMI and ASCAP have both made fools out of themselves with letters and phone calls to the owner and saying that they were going to show up and make the owner pay for music. BMI phone calls with threats almost sent the matter to an attorney. ASCAP did show up and stood right in front of us as we were playing,then talked to the owner and left. He said he saw no reason to bother us or the owner. We think that BMI finally showed up but are not sure. They are required to wear a badge and go straight to the owner when they enter a business. This guy that we think was BMI hung around and listened to us, even took some pictures and asked to see the CDs the owner plays. He looked like a tourist but I don"t think so. They had made the owner of the restaurant so mad by the time they came out that he probably would have thrown him out! We play mostly Traditional German and European music mixed with a few of our own songs. On the phone BMI tried to tell the owner he had to pay us if we played some of our own songs!! I was a BMI songwriter back in the 60s and had some air play of songs and all I ever got from them was a check for $1.35. I have talked to other artists and they say the checks that they get from BMI make them laugh. 99 cents!! They just shred them. Who do you think is making money on this deal. It is sure not the artists.

J. Mark Lane

Jan-28-2005, 11:46am

Well said, John. Sometimes in the context of discussing the various details, we neglect to explain the big picture. Thanks.

And as for "Ancient," who has chosen to keep his name and email address prive <g>, well, ...uh, your point was? If you registered as a BMI artist, then a venue where you play your (registered) music is required to pay BMI. For that, you can blame...yourself. And as for the amounts artists get paid, yes, I think that was what was being discussed above, and clearly it's not a perfect system. To a considerable extent, your registration with BMI/ASCAP, and the fees "you" pay them (the part they keep from collections) is to support a mechanism to prevent theft of copyrighted material. Under the law as it is, that's what it would be if people could perform someone else's music without paying a royalty.

As I said, I'm just the messenger. I didn't make the law.

Mark

Moose

Jan-28-2005, 12:15pm

As a former full-time, union-dues paying musician I can vouch for the fact that ASCAP/BMI can - legally - stir things up. As a sidenote so can the union - depending on the geographic location and the "strength" of the "local". Years ago I was sitting at home waiting for the phone to ring for a gig - ANY gig! - I got - and took - one(gig) that was NOT a "union" job. A week later I received a notice/repremand/FINE for playing it. I dropped out of the union, tore up my "card'....and got a "day-job" - Broke my heart. Just my .02. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mad.gif http://www.mandolincafe.net/iB_html/non-cgi/emoticons/rock.gif

Dru Lee Parsec

Jan-28-2005, 12:17pm

THIS is one of the reasons we don't have a culture of music in this country. Go to a pub in England or Ireland and it's pretty common for people to pull out guitars and mandolins and play some tunes and sing some songs. I can't freakin' believe that we're so caught up in this culture of "Grab every freakin' dime you can" that we can't even sing a song in a pub or coffee shop without having to pay somebody.

I mean really! This is atroucious that ASCAP is harrassing small businesses and local musicians for singing a tune. How does this support music? How does this support the musicians? All this does is GUARENTEE that music by the song writers they represent will NEVER be performed in public.

Is this what we've come to? A coffee house that seats all of 20 people cancels their open mic night because ASCAP wants to take their cut. And by the way, I talked to the owner and she was ready to deal with ASCAP but the contract they sent her was nothing like the contract that they described when their "goons" came to her business to threaten her. The cost of the ASCAP contract was more than what the musicians make off of tips in a year. So the organization that "represents" the song writers makes more money than the musician that's performing the music. Do you honestly think that's fair?

And Geez! The Musician's Union threatening a pizza parlour because their bluegrass jam uses non-union musicians? That's exactly the kind of behavior that makes people hate unions. Once again it's an example of "grab the money and screw the music".

And we wonder how we went from a culture where music was something that people played together for enjoyment to a culture where music is something that only mega-stars like Britney and Modonna produce. How did we go from a culture where we had local radio stations that had shows that supported local bands and music to a culture where ClearChannel owns 80% of the airways and you hear the same bland corporate radio no matter where you are in the country? How did we go from a culture where you could meet up with your buddies in a coffee shop or pub and strum some tunes together to a culture where you can't make a musical noise for fear of having to pay a licensing fee?

This is insane.

Moose

Jan-28-2005, 12:28pm

"....and got a day-job. Broke my heart." http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mandosmiley.gif http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mad.gif

Tom C

Jan-28-2005, 12:45pm

Pretty soon "we" will be paying royaly fees for tunes "other" people may hear from "our" radios. These artists should be glad others are making their music more visible by playing it.

J. Mark Lane

Jan-28-2005, 12:53pm

Well, that's very eloquent, Greg. And on one level, I tend to agree with you. But (fortunately), the world is not really the way you describe it.

First, England and Ireland have copyright laws very much as we do here, and also have organizations like ASCAP and BMI to enforce the performance rights created by those laws. Those organizations extract fees from venues, just like they do here. For example, see:

http://www.imro.ie/about/what_we_do.shtml

and

http://www.prs.co.uk/

So if you want to compare the "musical cultures" of the US vs those two countries (countries that I love dearly, for much that reason), then you will need to find another explanation, I'm afraid.

Secondly, I really don't think *this* country is as bad as you make it out. People *do* get together all the time and make music. Ferchrisakes, I think we are presently experiencing as musical explosion in this country, at the grass-roots level. It's a tremendous thing. Britney and Madonna the only people making music? Gimme a break. There's people making music right here on this website. There's people making music in bars and cafes and coffee houses and bookstores in practically every nowhere community in this country. Good music, much of it, if you ask me. There's festivals and concerts and jams and open mics everywhere. Where is this desert you describe?

The example you give of a coffee shop owner closing an open mic, well, I certainly believe you. But I suspect (a) the contract wasn't all that bad, really, but coffee shop owners may not be in a great position to read legal documents (most of the time there's a lawyer *somewhere* around to help), and (b) if the fee being proposed by ASCAP was disproportionate, then I bet that could have been discussed with them, and © whether a coffee house musician chooses to play for tips, or gets $500 an hour, is arguably his choice, or the venue's choice, and is *arguably* not relevant. (For example, if I copy your CD and sell it on the street for ten cents a copy, does that diminish the impact on you? For each one I sell, I'm potentially removing one consumer from the market for the ones you sell at your proper price. Not a direct analogy, but you get the point, I hope.)

So, yeah, geez...life isn't quite as black and white as all that.

Now, when you talk about unions...I had better stop. I lose my ability to refrain from using fowl language when that subject comes up.

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

Mark

J. Mark Lane

Jan-28-2005, 12:55pm

I just have to comment on the hilarious irony of the stupid spell check thingy changing my letter c in parens to a copyright symbol. Made my day!
Mark

Moose

Jan-28-2005, 12:58pm

Mark: you da' man.... hee.. hee.. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mandosmiley.gif

Keith Erickson

Jan-28-2005, 1:07pm

[QUOTE]Let's suppose a group of musicians gets together and, for some inexplicable reason, decides to do a program of just my music. (An all-Craton gala -- would that it could happen.) Anyway, they select, say, four of my works and dutifully purchase the scores from a music store for, let's say, $100. They rehearse and sign a contract with an agency that lines up six venues for their program, and that agrees they will make (oh, let's make up a figure) $400 for each performance, plus a percentage of the box office. Because my music is so wildly popular (yeah, right), they sell out each performance, coming away in the end with something like $6k. That's money well earned and fully deserved.

But what about me, without whom the concerts could not have been given?QUOTE]

I totally understand where you are coming from, however in reality, if your songs were so wildly popular, you would be so busy being a zillionare with money, chicks, and what ever else you wanted to consume that 6K would mean nothing to you.

Now, if I played at a bar and told the audience "Hey I'm going to play you a song that I wrote back in the 1970's and it's "Sweet Home Alabama"; you most certainly have a point and I'll be right along side you with a pitch fork.

Maybe I should becareful of the songs that I play every week in our church choir since they are all copyrighted. I would sure hate for the ATF to come in like they did in another part of this state a few years back and burn the place to the ground. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mad.gif

John Craton

Jan-28-2005, 1:27pm

if your songs were so wildly popular, you would be so busy being a zillionare with money, chicks, and what ever else you wanted to consume that 6K would mean nothing to you.
You forget that I mentioned I'm a classical composer ... you know, the kind that have a tendency to die of starvation http://www.mandolincafe.net/iB_html/non-cgi/emoticons/wink.gif

Of course, my story was, unfortunately, just a story, invented for illutsration purposes. Quite frankly, I (and my wife) would be thrilled with an extra $6k. (She probably wouldn't be as happy about the "chicks," however.)

vkioulaphides

Jan-28-2005, 1:29pm

[QUOTE]"Second, it is not ASCAP's or BMI's policy to sell licenses to offenders after they are caught."

[Quoting Benignus, and with the disclaimer that I am a composer by profession and an ASCAP member.]

In fact, in the case of a venue not yet licensed, ASCAP does first contact said venue and offer a blanket agreement, well before litigating. In my work in arts management (i.e. being on the "other side of the fence"), I have always been contacted by ASCAP, offered an agreement, signed and returned it, etc. The rule of law needs not be unpleasant or uncivil; au contraire, it was meant to have the very opposite effect.

The gut reaction to some gang of thugs coming into a shop, without prior notice, and roughing up the shopkeeper(s) is, ahm... understandable, but not in reaction to what really happens.

I have had several works performed in the Soviet Union, pre-perestroika, pre-Gorbachev, pre-thaw. I never got a penny —or would that be a ruble?— by way of royalties. When I brought up the issue with local impresarios (safely, from a distance, hidden under my couch in New York), they either acted as if I had just come down from Mars, or flatly (and rudely) barked "No!"

I have also worked extensively with musicians in former Eastern Europe. Funny thing... the thing they admire most about us is NOT our (obviously higher) standard of living, our glitzier cars, better-sewn clothes, and supermarket shelves, bowing under the weight of 1,001 goodies from all around the world; the thing they DO admire the most is our legal system, our civic institutions, professional associations (such as e.g. ASCAP and BMI).

So, yes: This *is* indeed America but, perhaps paradoxically, for all the opposite reasons than those usually invoked.

Sorry. Got carried away again... back to trying to make a living, writing music. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/wink.gif

Keith Erickson

Jan-28-2005, 1:46pm

Sorry. Got carried away again... back to trying to make a living, writing music.

You know that I've got carried away as well and I apologize. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/sad.gif

I do want to see musicians get what they deserve and rightly so. If I pay for the sheet music, why can't I play this in a public forum if I'm not claiming that the work is mine? http://www.mandolincafe.net/iB_html/non-cgi/emoticons/rock.gif

That's my question...

vkioulaphides

Jan-28-2005, 2:03pm

Keith, ownership of "intellectual rights" goes far beyond what you think; on occasion, in fact, it is quite the opposite of what you think.

You can, for example, freely download some of my mandolin music here. (http://www.paperclipdesign.com/vk/) You don't owe me a dime; pick to your heart's delight.

You can play this stuff in the privacy of your home, for your self, family and friends; you still don't owe me a dime. No, no thugs will break down your door, terrorize your spouse and kids, and ransack the house for stolen mandolin music.

But: You play my music in a public forum, in a commercial venue, where said performance becomes part of a revenue stream: Then, my friend, someone DOES indeed have the obligation to pay some, infinitesimal portion of said revenue stream to me— the venue, of course, not you (the performer).

That is precisely what the U.S. Constitution provides for: it's not to prevent you from calling my music yours; it is to make writing music, through ownership of one's creations, a profession. And if my creations are mine, I can sell them, rent them, lease them, license them, etc. as I please.

When you are performing a work of mine (or any composer whose works are under copyright protection), please understand that you are thereby "renting" someone's intellectual property. Owning the actual printed matter does not "transfer" ownership to you.

In fact, I would gladly offer just about anything from my catalogue (except those works that are contractually committed by me to publishers) to anyone, free of charge. Hey, I'll even pay the shipping charges! But... if you perform any of it at a commercial venue, said venue ought to be licensed so that, after all the paperwork, reporting forms, log-sheets, etc. —and a couple of years later!—#I may get the $0.00000001 I am entitled to.

John Craton

Jan-28-2005, 2:12pm

If I pay for the sheet music, why can't I play this in a public forum if I'm not claiming that the work is mine?
That's what I was trying to illustrate in my earlier post. You could earn hundreds or perhaps thousands of dollars over the years performing music you paid perhaps $9.95 for in sheet music. If the composer doesn't get a percentage of the earnings from performances, his cut would be only the $1 he got from the sheet music sale. Not enough to make a living, and not enough to keep writing the music you like to perform. Perhaps unfortunately, it's not like buying a car which, once yours, you can drive as often as you like - even get a license to drive it for hire. The only way that could work equitably in the music world would be if a $6.95 piece of sheet music sold for exponentially more. But who would by a song that cost upwards of a thousand bucks? And even at that, the composer would only net $100. It's a confusing world, isn't it? What's fair for all concerned? Maybe someday we'll figure it all out.

J. Mark Lane

Jan-28-2005, 2:17pm

That is precisely what the U.S. Constitution provides for: it's not to prevent you from calling my music yours; it is to make writing music, through ownership of one's creations, a profession.
<applause>

My work here is done. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/biggrin.gif

The only thing I can add to the above is perhaps this: not only does the Constitutional protection this country provides allow for the existence of musical composition as a profession, in a way, it indirectly incentivizes people to write their own music. You don't like the fact that someone has to pay when you perform someone else's creation? Fine, write your own.

Adios, amigos....

Mark

Mark Robertson-Tessi

Jan-28-2005, 2:45pm

Regarding ASCAP rates, they can be found online. For private clubs they are determined by expenditure, for example. Check:

http://www.ascap.com/licensing/generalreports.html

For a typical club, having music 5 nights a week and spending average of 250+ a night on entertainment, they pay 1139 annually to ASCAP. If they play CD's, there are additional fees. THere are similar fees for BMI, so probably somehting like 3000 a year for the package.
The fees total about 4.6 percent of the entertainment budget.

Coffee house, pizza place, say music two nights a week, cd's the rest of the time, pay entertainers 150 a night. Total per year: 457 plus CD playing fees. So about 1200 for ASCAP and BMI fees, which is 7.6 percent.

These fees appear reasonable on face value.

<flag-"begin_rant">
Personally I disagree strongly with the distribution of the royalties based on radio airplay. Actually I think radio airplay selection is a load of ####, so royalties distributed based on that premise are a load of #### squared. Clearly the system favors the large versus the small. I think if performance royalties cannot be accounted for and distributed fairly, then they should not be collected and distributed at all. You may say that it's logistically impossible to monitor every song played by every band at every venue every day of every year. TRUE. Then use the part about "they should not be collected and distributed at all."

Want more math? Take the coffee house example. Lets say the band XYZ plays once weekly there and includes in their setlist one song by local writer ABC. They play the song every week, it's a local fave but only gets occasional airplay on the college station. thats 52 performances a year, out of say 3000 songs played at the venue by all the bands there. The venue paid 900 for live preformance fees, minus the 16percent administrative fee that ASCAP/BMI takes, makes 756 which will be distributed for royalties. Since that song was played 52 out of 3000 songs, that cut should be the money that goes to writer ABC, which is about 13 bucks out of the 756. I bet you anything ABC never sees more than a few quarters from ASCAP, if anything. Multiply this by every song that gets played live once a week anywhere in the country and you can see that a lot of money is not going to the right people.

<flag-"end_rant">

Cheers,
Mark R-T

steve in tampa

Jan-28-2005, 3:34pm

MisterT!

Thank you for finding that in the ASCAP web site. That is exactly what I was looking for and answers all my questions. Now if the club owner will follow through.....

mandowilli

Jan-28-2005, 6:29pm

Hey Steve, my advise is to let it blow over. It always does. What you are talking about is small peanuts to them, but they have to keep at it just so they can say that they did.

See you at Aprilfest on the Withlacoochie river?

willi

http://www.onestreetover.net/pages/1/index.htm

steve in tampa

Jan-29-2005, 5:11am

Willi!
Yes , I plan to make it to the river! That was a blast last year. KZ and Eric are having a party in Feb at the house too.
Word I'm getting is that the club owners kinda of rattled over this (cumulative efffect from income loss from the hurricane season, and some other issues), and it is easier to have one less thing to worry about.
It is a relatively well known venue in the area, and I 'm surprised the issue has not come up before. I am really on the sidelines on this, but trying to help. We were supposed to play Sunday, but they decided not to have live music.
I will be finding out more about the situation tomorrow. Today we're in the Gasparilla Parade!

dave42

Jan-29-2005, 4:24pm

Interesting thread.
I frequent a locally owned coffee shop. A couple of years ago he allowed a 3 person acoustic group use his coffee shop as, more or less, a practice place on Friday evenings. 2 times. Caught the wrath of ASCAP half a dozen times. They told him things like,"Why haven't you paid your ASCAP fees, if you intend to stay in business."

He moved his business to a better location 1/2 mile away, and he's had non ASCAP singer/songwriters play there. Plays radio, too.

I'm part of a acoustic duo. If we were to practice on this coffee shop's front sidewalk (public, but the coffee shop has some tables out there) would the coffee shop have to pay fees for that, too?
Dave

mandowilli

Jan-29-2005, 4:54pm

My bands home court is a Bistro that has live music 7 days a week so they pay up.
Does anyone know how much money we are talking about for a small venue to pay?

Steve, see you at KZ's.

willi

MartinD_GibsonA

Jan-29-2005, 7:54pm

J. Mark Lane wrote, "... the United States Constitution (which provides for the protection of copyrights) ..."

vkioulaphides wrote, "That is precisely what the U.S. Constitution provides for ..."

Huh? #Exactly WHERE in the Constitution of the United States is copyright protection provided? #Did I doze off in civics class? #I've searched the entire Constitution, including the 27 amendments, here (http://www.midnightbeach.com/jon/US-Constitution.htm#A11) and *nowhere* in the document does the word "copyright" appear. #What exactly are you two talking about?

Don Smith

J. Mark Lane

Jan-29-2005, 8:12pm

Article I, Section 8:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Mark

J. Mark Lane

Jan-29-2005, 8:13pm

Here's a nice little history for ya, Don:

http://www.arl.org/info/frn/copy/timeline.html

MartinD_GibsonA

Jan-30-2005, 12:48am

Mark,

You might argue that I'm playing games with semantics here, but I'd counter that you're playing a little fast and loose wih the facts. #Your quote is correct but incomplete. #You left out the first five words of the Article which are "The Congress shall have power ... ", so the entire provision reads "The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". #The article granted Congress the POWER TO ESTABLISH copyright protection, but until such time as it did so under the Copyright Act of 1790, such protection didn't exist. #Yes, I was incorrect in my assertion that copyrights aren't mentioned in the Constitution -- thanks for educating me -- but I believe I'm correct in that the Constitution in and of itself doesn't provide copyright protection. #It's a small distinction, but an important one from a legal standpoint.

Don Smith

kudzugypsy

Jan-30-2005, 6:26am

this is a very good thread, thanks to everyone (and the legal guru's) for shedding some insight into this.

my utter confusion (on this subject) is that since bluegrass gets *basicly* zero national airplay, and the majority of touring bands make their money on the festival circuit (live performances)...where do songwriter/performance royalties come from in this situation? i have been playing festivals for 8 years, NOBODY ever asked us for a song sheet for royalty purposes. now, your making me feel like i'm stealing someones intellectual property....but does the money ever get back to the rightful owner...i doubt it, it goes to LA or wherever. when we cut our cds, naturally we have to supply the correct copyright for production, but even in that case, i wonder if any of that money tricked back. if i'm not mistaken, i think it is something like 8¢ per song/per unit.

there is a lot of good textbook points made here, but lay out a little of how it would apply to the basic *amature* band (say someone playing 2 times a month)
Boudleaux and Felice Bryant (Rocky Top) *should* be the richest people in the country

...as a side note, its hard to believe that passing a tip jar at a coffe house counts as "public performance for profit"....ha http://www.mandolincafe.net/iB_html/non-cgi/emoticons/tounge.gif

J. Mark Lane

Jan-30-2005, 6:48am

Yes, Don, in a sense you are correct, although in a larger sense you are, indeed, engaging in semantics. #You can't just read the Constitution in a literal sense and understand how Constitutional law works. #Many of the things we now call "Constitutional rights" are structured in similar ways. #For example, the First Amendment provides that "Congress shall make no law...abridging the freedom of speech." #But it has long been settled that Constitutional right of freedom of speech is fundamental in this country. #

MartinD_GibsonA

Jan-30-2005, 9:07am

Mark,

I *did* thank you for educating me, and that was sincere. #If I offended you, I also offer a sincere apology ... that wasn't my intention and I admit my choice of words was poor. #I enjoy a good intellectual discussion, but I'm sure you'll agree that the tone of ANY discussion is affected -- usually in an adverse maner -- by having to carry it on in a "2-dimensional space". #I simply wanted to point out that the Constitution provides Congress the power to establish copyright protection, but if Congress doesn't provide it through legislation, then it doesn't exist, at least not the way I read the Article. #If it came across the wrong way, I'm sorry.

Don

MartinD_GibsonA

Jan-30-2005, 9:40am

kudzugypsy,

As I understand it -- and this comes from all sorts of sources -- you don't *have to* provide anyone at a festival a set list. #It's the festival organizers'/promoters' responsibility to get with the appropriate licensing organizations and pay a fee for the (expected) use of copyrighted material at the festival. #The performers are under no obligation with respect to licensing, so there's no need for you to feel like a thief; it's not your responsibility. #The distribution of these fees is handled by BMI, ASCAP and/or SESAC, and I've been told -- but I haven't ever bothered to confirm it -- that they use a formula based mostly on radio airplay across ALL genres of music, which means yes ... most bluegrass writers probably see little of that money while the people who write for Britney Spears get filthy rich. #I know several local writers who are "small fry" members of one of the organizations, and they say they get quarterly checks for amounts like $0.29 ... doesn't seem fair, does it?

You're correct, the cost to license material for a CD is $.08/song for (I think) the first 2500 copies; I believe that after that, it works on a decreasing sliding scale. #That money usually goes to the Harry Fox Agency which is then responsible for sending it "somewhere". #In this case, I'm guessing -- and I could be wrong -- that a decent share of it gets to the publisher because it's known just who that is. #After that, the publisher likely has some kind of a deal with the copyright holder and it's up to them to distribute the funds. #Whether or not that distribution is "fair" probably depends on which side has the more competent attorney(s).

Passing the tip jar at a coffee house is, in fact, considered public performance for profit ... although not necessarily YOUR profit. #It's the profit of the venue where you're playing, and the various licensing organizations view live music the same way your state alcohol board views a bar -- something designed to entice people to come through the door. #In other words, you're there performing to get people to come in and spend money with the proprietor. #From that respect, it's hard (for me at least) to argue with ASCAP's point of view. #The way they distribute the money they rake in is a separate discussion.

Don Smith

Bob DeVellis

Jan-30-2005, 10:20am

Whenever this topic comes up, it seems that everyone is unhappy. Performers are angry that spontaneous musical gatherings in pubs and elsewhere are subject to legal sanctions.

Composers are worried that others are taking money that should belong to the creators of music out of composers' pockets.

Who's happy?

The corporations? It certainly doesn't seem that way. They're all bent out of shape when "their" creative products are used without compensation.

The creators? The performers? THe corporations? Seems not.

J. Mark Lane

Jan-30-2005, 10:58am

Bob, you are absolutely right. And that's why (despite the obvious contrary nature of this thread) I usually try to stay out of these discussions. I tend to point people to the Copyright Office website (excellent), and move on. I got involved again here, against my better judgment.

Note that the anger almost always centers on performance rights. Hm.

And Don, sorry, I overreacted to your language (rather than your content). No problem, my friend. In fact, your post got me thinking: I wonder what would happen if Congress simply repealed the Copyright Act? Hm. Would someone prevail on a claim that this was an unconstitutional act by Congress? Food for thought....

Mark

Michael H Geimer

Jan-30-2005, 11:30am

" Performers are angry that spontaneous musical gatherings in pubs and elsewhere are subject to legal sanctions. "

What if we treated physics this way? Consider a discussion about measurement between scientists at some symposium where the venue was asked to pony up money because The Uncertainty Principle is acutally intellectual property owned by the Heisenberg Estate.

IMO, there is conflict between the purpose of copyright law - To promote the Progress of Science and useful Arts - and it's current application.

We would hesitate to stifle scientifc discussion by imposing monetary disincentives to the free discusion of ideas (even within a commercial evironment such as a symposium).

So why then, do we attempt to stifle jams, and casual sessions which create fertile soil for the next 'crop' of writers and performers.

In my (non-prof) opinion, the phrase " ... by securing for limited Times ... " can easily be construed as " on limited ocassions ". Ticketed concerts, CDs, and other truly commercial situations should be licensed, but incidental music (music not directly sold) should be excempt.

Please take note that I'm griping about performaces, not publishing. The two areas are treated *very* differently by ASCAP/BMI. Performance royalties are the ones that get allocated primarily by national playists with little or no inclusion of the set list material (often hand written) provided by bands to ASCAP/BMI venues. OTOH Mechanical royalties are calculated through phyiscal inventory lists, and are much more accurate.

I still get royalties, but there are *all* mechanical. So, while I might get a few hundered dollars each year as my cut of the physical CDs that move around, I have never actually seen one cent in performance royalites, even though I know I do get occasional airplay.

So, back to my earlier point. I know from experience that artists who don't get national radio play don't get performace royalties. So, unless someone can demonstrate to me that I'm hindering the CD sales of the artists I cover I'm not going to hold any guilt about having comminted 'theft' of their intellectual property.

Call it civil disobedience, but I think I'm abiding with the spirit of the U.S. Constitution even if I am in disagreement with current law and practice.

- Benig ... who's nipples are not twisted, nor undies bunched, etc. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/smile.gif

P.S. Victor ... the shakedown story came from a widely publicized situation with a cafe here in SF last year. I shouldn't characterize all ASCAP/BMI investigators as ruffians, but I do think the commision based pay structure of these reps might contribute to methods designed to yield more $$$ from the offenders.

steve in tampa

Jan-30-2005, 11:32am

Hey fellas!

I started this thread in order to solicit advice on compliance so I could help get a venue going again for myself and other performers. No need to get ya'lls nipples twisted up in knots with opinions on the subject. I'd be getting my stuff together to cart over and set up right now if the ASCAP folks hadn't shown up at the venue. I do want to thank ya'll for helping me cipher some of this out! Thanks!

Ancient

Jan-30-2005, 11:48am

The simple solution to this problem for us was to play Public domain and traditional folk songs. BMI has a search where you can check to see if the song you want to play is registered with them. ASCAP and Harry Fox have the same search on their web pages. You have to be careful and notice that a lot of times an arrangement of a PD song or folk song will be copywrited. That does not bother us because we make or own arrangements. That is why BMI and ASCAP came in to where we play and could not find anything to bother us or the owner about. They left.

Michael H Geimer

Jan-30-2005, 12:04pm

" I'd be getting my stuff together to cart over and set up right now if the ASCAP folks hadn't shown up at the venue. "

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

I am gathering my stuff up right now to go play. I get paid in breakfast, so I suppose I should offer a bite to Willie, and one to Lucinda, and another for Johnny ... were he around to enjoy it.

kudzugypsy

Jan-30-2005, 12:28pm

all right, great input.
now i know why my royalty check aint come in yet!

glad to know i'm doing my part to finance brittney's next divorce. (& michael j's pedophile case)

btw, don, this is jerome with the parsons, good to hear from you, and glad to see your doing your homework.

MartinD_GibsonA

Jan-30-2005, 1:21pm

Jerome,

You dog ... good to hear from you too. #But what do you care about mechanical licenses? #Isn't that Jon's problem? #After all, the group isn't called The Hawkes!! # ;-)

Don

Michael H Geimer

Jan-30-2005, 9:16pm

J. Mark Lane wrote:
"(despite the obvious contrary nature of this thread) I usually try to stay out of these discussions. #I tend to point people to the Copyright Office website (excellent), and move on. #I got involved again here, against my better judgment."

Please don't stay completely out of these discussions. I think we all know that you're offering 'off the clock' opinions, but we appreciate them nevertheless. You have a keen 'edumacated' voice from which we all learn something worthwhile.

- Benig

mandroid

Jan-30-2005, 11:22pm

I would think a performance license is a 'cost of doing business' expense,and can be factored into deductions at tax time.
So if Elvis lives, his song
list is still under copyright?
or even if he isnt Its gotta be true for 75 years?

seems like Acuff-Rose already renew rights to hank williams,ad infinitum, did it get transferred to Jr? (who got sick of having to perform it)

All_Smiles_Tonight

Jan-31-2005, 12:12am

Statement of # # # # # # # # # #
Roger McGuinn # # # # # # # #
Songwriter\Musician # # # # # # #
Formerly with The Byrds # # # # # # # # # # # # #
on “The Future of Digital Music: Is There an Upside to Downloading?” # # # # # # # # # # #
before the # # # # # #
U.S. Senate Judiciary Committee # # # # # # # # # #
July 11, 2000

Hello, my name is Roger McGuinn. My experience in the music businessbegan in 1960 with my recording of “Tonight In Person” on RCA Records.I played guitar and banjo for the folk group the “Limeliters.” Isubsequently recorded two albums with the folk group the “ChadMitchell Trio.” I toured and recorded with Bobby Darin and was themusical director of Judy Collins’ third album. In each of thosesituations I was not a royalty artist, but a musician for hire. My first position as a royalty artist came in 1964 when I signed arecording contract with Columbia Records as the leader of thefolk-rock band the “Byrds.” During my tenure with the Byrds I recordedover fifteen albums. In most cases a modest advance against royaltieswas all the money I received for my participation in these recordingprojects. In 1973 my work with the Byrds ended. I embarked on a solo recordingcareer on Columbia Records, and recorded five albums. The only moneyI’ve received for these albums was the modest advance paid prior toeach recording. In 1977 I recorded three albums for Capitol Records in the group“McGuinn, Clark, and Hillman.” Even though the song “Don’t You WriteHer Off” was a top 40 hit, the only money I received from CapitolRecords was in the form of a modest advance. In 1989 I recorded a solo CD, “Back from Rio”, for Arista Records.This CD sold approximately 500,000 copies worldwide, and aside from amodest advance, I have received no royalties from that project. The same is true of my 1996 recording of “Live From Mars” forHollywood Records. In all cases the publicity generated by havingrecordings available and promoted on radio created an audience for mylive performances. My performing work is how I make my living. Eventhough I’ve recorded over twenty-five records, I cannot support myfamily on record royalties alone. In 1994 I began making recordings of traditional folk songs that I’dlearned as a young folk singer. I was concerned that these wonderfulsongs would be lost. The commercial music business hasn’t promotedtraditional music for many years. These recording were all availablefor free download on my website http://www.mcguinn.com on theInternet. In 1998 an employee of MP3.com heard the folk recordings that I’d madeavailable at http://www.mcguinn.com and invited me to place them onMP3.com http://www.mp3.com. They offered an unheard of, non-exclusiverecording contract with a royalty rate of 50% of the gross sales. Iwas delighted by this youthful and uncommonly fair approach to therecording industry. MP3.com not only allowed me to place these songson their server, but also offered to make CDs of these songs for sale.They absorbed all the packaging and distribution costs. Not only isMP3.com an on-line record distributor, it is also becoming the newradio of the 21st century! So far I have made thousands of dollars from the sale of these folkrecordings on MP3.com, and I feel privileged to be able to use MP3sand the Internet as a vehicle for my artistic expression. MP3.com hasoffered me more artistic freedom than any of my previous relationshipswith #mainstream recording companies. I think this avenue of digitalmusic delivery is of great value to young artists, because it’s sodifficult for bands to acquire a recording contract. When young bandsask me how to get their music heard, I always recommend MP3.comSorry to say MP3.com is now off the web.Roger McGuinn

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vkioulaphides

Jan-31-2005, 9:14am

[QUOTE]"Who's happy?"

bobd

Well, Bob, isn't this the very definition of democracy? (i.e. a system of governance where everyone is about equally UNhappy)

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

The tug-of-war between conflicting self-interests IS democracy, IS the free market, and IS our society. I find nothing wrong with it, if only because it is the far better (or least bad) among alternatives.

My music is still being played far and wide in the (now reformed, I am told) Russian Federation. Still, not a penny's worth of royalties...

I am no apologist for ASCAP but only a member. My point was simply the fundamental right of ownership: while obvious to all, when it comes to material objects, people question it, object to it, or outright resent it when it applies to ownership of intellectual property. Clearly, the two "kinds" of ownership are but one. Only once we are past this conceptual hurdle, discussion of application, limitations, and legal statutes becomes meaningful.

Moose

Jan-31-2005, 9:38am

PHEW!! - Boy's let's "tap" one.., congregrate in my heated garage(the'll never find us THERE).., AND PICK A FEW..... http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mandosmiley.gif http://www.mandolincafe.net/iB_html/non-cgi/emoticons/biggrin.gif

luckylarue

Jan-31-2005, 10:12am

It sounds like the ascap/bmi system is quite flawed and clearly benefits the large music corporations and the corporate "artists" they promote.

The music industry is run by white men in grey suits who are only concerned with making money - not protecting the artist's integrity or rights. #Roger Mcguinn's comments expose the injustice of this system. #It would be interesting to hear more from the pros perspective on this. #
# Why should anyone support a system that benefits so few? #I think it would be fine if the artist's we cover would indeed receive the royalties from the clubs. #It is quite unjust if I play a Robert Earl Keen song at open mic and the $$ goes to Brittany Spears.

Imo, the real issue has nothing to do w/ protecting the artists, but all about increasing corporate profits for an industry intent on maintaing a strangled hold on the music biz. #Support your independent artists and independent record companies!

Comments? J. Mark - ordained holy one? Please do grace our humble presence but one more time!

kudzugypsy

Jan-31-2005, 11:51am

ok, to clear things up more. one of the members of my group is the director of the local symphony. we discussed this last night at our rehersal. she told me that the form you fill out for ascap lisense allows you to specify what type of licenced music you will be performing. i dont know that this holds for "folk" music, it may just be considered country, but on the symphony license, it is classified as classical performance.
the symphony license fees are based on the operating budget of the symphony, along with the adjusted incomes of the members. (of course, this is a "non-profit" org)
this makes more sense, although the money is still not going to the actual artists.

Michael H Geimer

Jan-31-2005, 12:34pm

" Clearly, the two "kinds" of ownership are but one. "

Conceptually the two kinds of ownerships are very different. Intellectual Property is not really considered a Natural Right. IP does not carry anywhere near the same weight as do Property Rights.

Absurd consequences would follow if we were to actually equate the two 'rights'.

Should we try copyright violation as a criminal act? Jail time?

This is an issue of civil law. It has more in common with trade barriers and tariffs (designed to protect specific U.S. markets, and industries) than with say ... burglary.

That being said, I still believe in the principles behind Copyright and Patents, and still have major issues with our current practices.

- Benig

J. Mark Lane

Jan-31-2005, 12:51pm

Michael H Geimer

Jan-31-2005, 1:04pm

I guess I stand corrected.

Afterthought: I'm having a difficult time imagining a criminal case being brought against a performance violation. Unauthorized duplication (i.e. commercial counterfeiting) makes perfect sense, though.

J. Mark Lane

Jan-31-2005, 1:43pm

Yeah, they don't bring many criminal cases for copyright violation. Hopefully, they have better things to do (prosecuting Martha Stewart, for example) http://www.mandolincafe.net/iB_html/non-cgi/emoticons/tounge.gif

fatt-dad

Jan-31-2005, 2:38pm

I bought more albums when Napster was up and running then I do now. I'm with the idea that public exposure is better for the recording artist then keeping track of all the nickels.

I also juxtapose this discussion with the pharmaceudical industry. You know, Merck gets to have an exclusive right to their medicine only for so long and then it's up for grabs to those that want to make generic copies. I would think (albeit wrong) that tunes that are several decades old would be imune from the nickel grabbers.

Other than that, nobody will be paying me to perform at a club anyhow, so I'll be quiet.

fatt-dad

J. Mark Lane

Jan-31-2005, 2:55pm

The life of a copyright is the author's life plus 70 years (it differs for older material, in varying ways). So really, your thought is on point. It's just that it takes more than "a few decades."

Mark

vkioulaphides

Jan-31-2005, 3:02pm

Benignus, the whole reason why we post copyright notices (the © symbol plus appropriate language) on printed music is specifically to "elevate" infringement from mere oversight to the criminal act it is.

You can easily argue against tarifs and trade barriers; I would, too. But they are as different from ownership rights as night from day.

Frequency of prosecution is, of course, no measure of wrongdoing.

Michael H Geimer

Jan-31-2005, 5:40pm

I think we're going to have to 'agree to disagree' on this one.

IP itself isn't a physical thing it is an abstract idea, so it has be examined differently than physical property.

Making yourself a fishing pole, because you saw your neighbor using one and took his idea is very much different from going over and taking the fish he caught with his own pole.

Yes. There are still issues of right and wrong, but there are significant differences, too.

This is why we discuss such things. Cheers.

vkioulaphides

Jan-31-2005, 6:11pm

[QUOTE]"This is why we discuss such things. Cheers. "

And cheers to you, too, benignus!

I have enjoyed every bit of this civil discussion among friends. Long live the Café.

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

Michael H Geimer

Jan-31-2005, 10:57pm

Excellent point! This Cafe has (once again) completely failed to ignire a Flame War.

Good work MC.

OdnamNool

Feb-01-2005, 4:32am

"Imagine"...............................John Lennon

Bob DeVellis

Feb-01-2005, 9:11am

One difference between physical property and IP is that only one person can be in possession of an object but more than one can be in possession of an idea (or the expression of an idea). Either I have my mandolin or you do. But we can both have the same song. Most (but not all) copywright-worthy ideas are, in fact, intended for distribution (through publication, performance, exhibition, etc.).

fatt-dad

Feb-01-2005, 9:18am

Not to belabor the topic, but here goes: How does it work when someone writes an inspired arraingment to an insipid tune? Where do the nickels go? Some to the original insipid composer and another to the creative arrainger? Or is the only "winner" the original (insipid) composer?

f-d

Michael H Geimer

Feb-01-2005, 9:34am

Precisely bobd. To extend the fisherman analogy a bit.

One fisherman invents a fishing pole that allows him to catch more fish and better feed his family.

His friend and neighbor wouldn't dare steal the fishing pole. Instead, he builds his own. Now there are two familes being fed well.

In straight terms there is only gain, and no loss to the sharing of ideas. But once we enter a more complex marketplace more facets of the issue emerge. Sometimes sharing will help build a young industry, while at other times sharing might hurt someone's existing profits.

That's why Congress was granted the power in order "To promote the Progress of Science and useful Arts ... "

So ... when I ponder how our IP laws help or hinder music my thoughts always come back to the idea that IP law only helps people to market their music. There is only an implied social benefit in that ... and one that is certainly debateable.

Are there more musicans per capita nowadays? I heard a Random Internet Statistic claiming that one hundered years ago, one person in each American household played a musical instrument, while to day the average is only one person out of every four households.*

If in fact there are less musicians around today than before the explosion of recorded music (and I'm not sure samples and loops placed into Garage Band really counts) #... we might just be hurting the arts rather than helping them.

- Benignus

*Of course, households themselves are smaller these days, so there must be some further adjustment required. My point is that we need look beyond soley ecomonics when making judgements about the success of our laws in promoting the Arts.

vkioulaphides

Feb-01-2005, 9:38am

fatt-dad, Copyright is what is called a "bundle of rights": that includes, among other things, the right to "arrange, compile, create derivative works" etc. Other such rights within the same bundle are performance rights, duplication rights, "mechanical" rights, broadcast rights, etc., etc. My fundamental, philosophical disagreement with benignus was that yes, these rights are indeed "natural" rights, just like the ownership rights on material, tangible property.

In your scenario, BOTH original composer (if such exists, and his/her work is duly registered with the Copyright Office i.e. if the original work is not in the public domain) and arranger ought to get something for their work.

As far as performance rights (of arrangements specifically) are concerned, ASCAP does license them; BMI does not. Being both a composer of original music and an arranger of older, public domain music, I have chosen to be affiliated with ASCAP, for obvious reasons.

If considering an arrangement, Step One is to find whether the work which you propose to arrange is under copyright protection. If no, no sweat; go for it! If yes, you must get written, signed permission from the copyright owner of the original work prior to embarking on this arrangement.

All this with the disclaimer that I am neither qualified nor licensed (as e.g. an arts attorney) to dispense professional-grade advice.

Cheers,

Victor