BMI strong arming

[August Watters]

with apparently no accountability to anyone but themselves.

Sounds like this is the real problem. Anyone know if ASCAP or BMI disclose what percentage of fees collected go to artists?

[Mando Medic]

BMI on their web site claims that 86% of what they collect goes to the artists. The other 14% collected is administrative costs. Kenc

[jaco]

It would be interesting to send a public records request to their accounting department and see exactly what is going to whom.

[jaco]

The following remarks were made during congressional hearings for the "Fairness in Music Licesing Act" passed in 1997.
"Businesses should not be charged for music outside their control, such as a jingle in a commercial. They should not be forced into doing business with every licensing society demanding a fee. They should have easy access to the music they are paying for, and there ought to be a fair and affordable form of dispute resolution, so that a florist from Brookfield, WI doesn't have to go to New York to resolve a dispute with BMI or ASCAP.

Until these requirements are met, the performance rights groups will continue to enjoy the coercive apparatus of a monopoly navigating with their platoons of lawyers through the confusing and often contradictory terms of court decisions in the ambiguous and unenforceable language of the Copyright Act. A tavern-keeper on Pewaukee Lake does not stand much of a chance under the existing system. It is no wonder that ASCAP and BMI plead for a market-placed negotiation instead of congressional action, because they control the marketplace.

The licensing societies insist that Congress has no role in the music licensing debate when the central issue is a proposal to perhaps diminish their ability to extract fees. Meanwhile, they have suggested that Congress is the appropriate forum for the expansion of the scope of copyright and the expansion of users' obligations to pay additional fees. The licensing societies cannot have it both ways.

The Constitution that I read empowers Congress to promulgate laws creating intellectual property rights. The Constitution also suggests the need for balanced intellectual property rights. When the mechanisms designed to ensure this balance are not working, it is Congress' right and responsibility to take appropriate legislative action." Amen

[jaco]

P.S. The comments were made congressman F.James Sensenbrenner Jr. a Republican from Wisconsin.

[Deaf David]

I'm really having a hard time gettting my head around this. If you and some friends are playing in your living room, with a few listening and not playing, is THAT public?

This is all getting very silly--and a bit alarming.

[Col. Suggs]

As an author, I'm sympathetic with songwriters who do have legitimate concerns about copyright and royalties.

Yet, at the same time, the differences between the book and music worlds are quite vast. #For instance, I can't imagine an organization charging local book clubs a fee for holding a book discussion.

[Jonathan Peck]

I would be very interested in hearing from someone who actually works for BMI/ASCAP. Perhaps we could send this thread over and hear from someone? Especially someone from their legal Department. Always good to hear the opposing view.

Here are some Excertss from an old thread on a different forum from an ASCAP rep. or you can view the whole thread herehttp://www.guitarseminars.com/ubb/Forum1/HTML/002062.html

parrish ellis
unregistered

To all involved in this thread,
As a composer/songwriter, guitarist, IGS Alum, and most relevant to this topic - an ASCAP employee, I feel it is my duty to set the record straight in regards to the ASCAP camp licensing story.

Yes, you are all promulgating outdated, misleading information on this issue which was resolved a few years ago. At the heart of the issue, which various writers in the press seemed happy to ignore, is the fact that ASCAP does NOT charge licensing fees to not-for-profit businesses - a vast category that includes many summer/scout camps.

Furthermore, the estate of Irving Berlin, the composer of many standards including "God Bless America" (one of the songs that was at issue in the girl scout case), donates ALL of the royalties from that song (that's a ####-ton of mailbox money, i assure you) to the Girl Scouts of America. This was a decision that Berlin made during his lifetime, far before this misguided article was published.

Dennis - I wholeheartedly agree with your statements about songwriters/composers deserving compensation for their creative work. Intellectual property is no different than tangible property - if you take it without paying the owner, then you're committing an illegal act for which there are punitive consequences. Above all else, the language of copyright law was written so that it might be beneficial to the American public as a whole. If an inventor/songwriter/author/poet/engineer had no time or money to invent/create/compose/write/build because he or she had to work a 12 hour shift in 7-11 to pay the bills, then we'd all be much worse off for it and the world would be a much bleaker, less highly evolved planet.

Dennis, and all other songwriter, composers and lyricists out there in Guitar Forum world: if you think BMI does a better job than ASCAP, you are fooling yourself and depriving yourself of a lot of great opportunities. Feel free to call me at work (212) 621-6241 or email me at:

bottleneck
Member

oh please,ascap not out of control?i suppose the mafia is ok too.we've all had the slimy ascap guy at our shows,over-anxious to go on our mailing lists.small bar owners hit up for money,just like thugs asking for protection money.ascap is terrible.

parrish ellis
unregistered

bottleneck,
Ignorance is bliss, and judging from your post, you're in paradise. Your response is consistent with so many other internet message-board postings by people who don't take the time to educated themselves on the topic under discussion, and who respond based solely on emotional impulse, devoid of logical thought and coherent expression. It's easy to take click on the "submit a response button" and write two sentences of baseless rhetoric.

ASCAP, like BMI and SESAC, is a performing rights organization that licenses the copyrighted musical works of its members for public performances, both domestically and abroad through reciprocal agreements with foreign organizations. Performing rights organizations do not collect mechanical royalties, and the accounting figures for CD sales have no bearing on ASCAP’s royalty distribution.

A business that uses music as part of its normal profit making operations, whether it be a bar, a live music club, a restaurant, a hotel, a TV station, a bowling alley, a greyhound bus, a country club, a radio station, a web site, whatever; they must accept a music licensing fee as a basic operational cost. Think about it – you’re a bar owner making money from selling food and alcohol to patrons who either come to hear music or enjoy an atmosphere greatly enhanced by a live band, a CD, the radio, TV, etc. You don’t steal the kegs out of the beer distributor’s truck and then sit back and sell the pints for pure profit (admittedly not an exact analogy, but applicable nonetheless). ASCAP's licensing fees are based on a fair weighting formula and can sometimes negotiated depending on mitigating circumstances. The vast majority of music users find the fees completely reasonable and an inconsequential cost compared to other expenses that they incur through their daily business operations. I’m not going to pretend that ASCAP is perfect - every big business (even non-profits) have flaws in their systems. Should they be fixed? Definitely. Can they be fixed? Of course, everything can be fixed. How can changes be effectively implemented? I don’t know. The US government is a mess right now, how do we fix that? They extremely complex subjects, worthy of entirely separate discussions.

Now, I can only assume that you are on the opposite end of the table from the bar owner/music user, since you mentioned that your band had been approached “by that slimy ASCAP guy”. I don’t understand your resentment since ASCAP can only benefit you as a songwriter and performing musician. It costs nothing to be a writer member, and there are a generous number of grants, scholarships, free workshops/seminars, showcases, opportunities to promote/advertise yourself through our member magazine (Playback) and web site (www.ascap.com), and merit-based monetary awards for music that has a unique prestige value that doesn’t get airplay in traditional media, in addition to quarterly performance royalty distributions. ASCAP also has an industry leading public affairs group that works hard to fight against potentially disastrous legislation that would strip music creators of their ability to make a living doing what they love. Some of the proposed or previously enacted legislation that ASCAP actively opposes include the “work for hire” clause, the “controlled composition” clause, and copyright erosion.

So you didn’t like the ASCAP guy that approached your band at one of your gigs; he’s only trying to help you succeed, he’s not trying to sign you to a record label contract that would financially screw you for the rest of your would-be career. Maybe he didn’t offer you a showcase, it’s impossible to showcase the bands of all 150,000 members. Bands selected for showcases are chosen because they write their own exceptional music, tour constantly and are active in their local music communities, not because they have “commercial potential.”

It always amazes me that so many musicians are ignorant to the merits of an organization that was created by songwriters/composers/lyricists in order to support fellow creative musicians. ASCAP is one of the few truly altruistic institutions in the music world. ASCAP is not out to take money from musicians or make money from your music. Why don’t you direct your misguided anger at record labels who put artists in a position of irreversible debt or retail stores who charge $20 per CD.

If you truly love music, if it enriches your life, then you must realize that it has value: as an art form, a passion, a lifestyle, a group of historical traditions, and yes, a commercial commodity. Maybe you’re a doctor, a car salesman, a financial analyst, a janitor, a lawyer, an insurance broker, a social worker - who knows what you do to pay your bills; but I’m a musician first and foremost (regardless of a day job), and I live, breathe, and eat music. I make major sacrifices for music to be my life, and I am but one person in a huge population of professional musicians who know the facts and have a deep appreciation for an organization that is fighting for the rights of creative musicians, helping us to at least attempt to make a living composing and playing music.


[This message has been edited by parrish ellis (edited October 17, 2002).]

[jaco]

Here's the problem as I see it. (while I am an attorney (over twenty years, and a music school graduate (Berklee) I don't claim to be an authority on this subject). ASCAP/BMI have absolute authority over their own buisness. They are not regulated by anyone. If you are a small club owner who has live music and ASCAP comes to you and says pay us this amount which WE believe is fair. You're screwed. Who do you appeal to? Answer, no one. ASCAP: pay or we'll sue you for thousands and you'll be responsible for our legal fees. (i.e. we will put you out of buisness).Take em to court? They never loose. Because they negotiate their way out of the cases they would surely have lost (Girl Scouts of America) agreeing to a "symbolic" $1.00 per year fee. Their legal teams will appeal you all the way to the U.S. Supreme Court until you are penniless. The only solution as I see it is for Congress to get involved and pass Federal legislation regulating these self proclaimed protectors of intelluctual property.

[GTison]

I think that establishments that profit should pay the BMI dues. It's not a new thing. Shutting down a private Jam is something else. Artist should get paid if they wrote the song. How else are they going to get paid for what they created? To say that most of those "bluegrass tunes are Public Domain", I don't think this is true. That's like the old "Dueling Banjos" story where Warner Brothers claimed the rights because they thought it was PD, When Arthur Smith and Don Reno( I think) wrote it. I think most bluegrass musicians and small time bands don't pay any royalties on songs they record. They just "operate under the radar". It all just smacks of being RINKYDINK. The public doesn't own the music the Author does. I hate to see small time places go through being hassled out of existence. But music rights are part of the cost of doing business. If you have music on hold you are supposed to pay. That's why you buy it from MUZAK or what ever because they'll take care of that for you. You pay the fiddler!! some way some how.

[August Watters]

Yes, you are all promulgating outdated, misleading information on this issue which was resolved a few years ago. At the heart of the issue, which various writers in the press seemed happy to ignore, is the fact that ASCAP does NOT charge licensing fees to not-for-profit businesses - a vast category that includes many summer/scout camps.

If that's true, why are the Girl Scouts paying a symbolic $1 per year? Doesn't that establish the idea that the Girl Scouts are liable? And why have we heard recent accounts (such as the one that started this thread) about grange hall jam sessions getting hassled over royalties?

[JeffD]

Just out of curiousity, would it be possible to just pay the mechanical fee for any copyrighted material? #As I recall the mechanical fee is something like 10 cents a song. #I would think it would be cheaper (but more complicated) and the money would go to the artist rather than the mob.

This would make a lot of sense. Especially if the burden was put on the performer to pay it.

If your question is whether BMI et. al. would be satisfied with this - my experience says no.

[jaco]

I don't believe anyone here thinks artists shouldn't get paid for their work. That isn't the issue. The issue is who's regulating or wathing over the collector's. Answer:no one.

[JeffD]

I'm really having a hard time gettting my head around this. #If you and some friends are playing in your living room, with a few listening and not playing, is THAT public? #

This is all getting very silly--and a bit alarming.

I don't know where the line is. For example, in my neighborhood we have a series of "house concerts" where a performer is coming through town and someone of us in our folkie network agrees to put the performer up for the night and host a concert in his/her living room. The rest of us attend, with a dish to pass, and generally we pass the hat for the performer.

If BMI finds out about house concerts they will have a field day. It doesn't matter if they legally have a right - who is going to pay thousands of dollars in legal fees to avoid an anual fee of a few hundred.

[JeffD]

As an author, I'm sympathetic with songwriters who do have legitimate concerns about copyright and royalties.

Yet, at the same time, the differences between the book and music worlds are quite vast. #For instance, I can't imagine an organization charging local book clubs a fee for holding a book discussion.

What about a public reading of excerpts of the book?

If todays intellectual propery climate had exist 200 years ago the library may never have come into existance.

[fatt-dad]

Here's what I want to say: ######## ##### ######## ### ######## and #######.

This stuff makes my head ache.

f-d

[mandocrucian]

I want to see cell phone video of when one of the BMI "tough guys" ends up messing with the performance of another Charlie Manson. I've never heard of them messing with #biker bars, or clubs with some sort of mob connection. Guess their arms ain't strong enough for that.

[Adam Tracksler]

I have to answer questions like this all the time in my line of work, I'm a graphic designer and I contract photographers to do artwork for my clients. Every photographer I have ever worked with works the same way - you pay them for their time and you buy the rights to use the photography, you never own the photography, unless you buy it outright at the beginning.

A lot of my clients have a hard time with this, they figure that the photographer has been paid for his/her services and that since they were the ones paying , they shouldnt have any restrictions on the use of what they paid for.

I undrstand this line of thought, I dont get paid a royalty on evey ad that I make or click n a website, architects dont get a piece of the action when a building they designed gets sold... its a very different way of working than the rest of (most) of us... If I sell my mandolin, the luthier does not get a piece of that action either.

It is a very sticky wicket that musicians are in, it has got to be tough to make living writing and performing songs. For every person on the high end of the money making charts, there are probably 100 on the low end....

I think that public Jams are a real gray area of the IP world - if I am in a circle and someone sings a song, that I dont like and dont really want to play, but play any way - am I responsible for that person's copyright infringement? If so, how much? what if I only played half of the song?

There has got to be a better way.....

[Mando Medic]

I'd like to remind and clarify to everyone as to why I started this thread. A grange hall in Washington state was forced to acquire a license from ASCAP for jam sessions. It is true that from time to time this grange hall uses the hall for performances and they do not have any issue with paying license fees for those events as they charge admission, pay the hall rental, insurance, sounds/lights, bands, advertisers, etc; the issue is when they have non paying jam sessions and do not charge anyone to come in. Be it a jam session at a library, church, Odd Fellows hall, fire department or any other non commercial venues, this is a practice that will seriously diminish the music and education of not just bluegrass, but any music that is passed on this way.
On another note, I wrote to Bluegrass Unlimited to let them know that I was doing a story on this issue and was told that "It's not a good fit for us." I have written for them in the past and have been published. I suspect that it's a hot potatoe to them and they don't want to get involved with this kind of contraversy. I will try IBMA and see if it's a story their interested in. Meanwhile, I like the dialoge here and appreciate all your thoughts and input on the subject. There are many things that I find wrong with ASCAP and BMI but I'm focusing on just one issue at this time. Many thanks, Ken Cartwright

[Tim]

A grange hall in Washington state was forced to acquire a license from ASCAP for jam sessions. It is true that from time to time this grange hall uses the hall for performances ...

Some of the posts earlier implied that the venue pays a flat rate. #Is this venue being billed separately for the performances and for the jam sessions?

[Mando Medic]

My understanding will be a quote from the person running the jam. This is what they said. I have left out persons names at this time and the actuall location of the jam for now. Kenc
"Hi Ken, as of this moment we hav'nt been approched by BMI....and I'm
not about to call them and see why. ASCAP is another story altogether,
for years we have paid them on an every 3 month "plan"...+ a fee when we
put on a Concert, and at the end of the year I send them whatever we
"owe" to make up thier minimum amount that they think they are due ?
When they first contacted us, they sent a letter to the XXXXXX
Community Club Board threatening them with a lawsuit if they did'nt pay
ASCAP every month, of course the Board panicked and called me and said
they would have to cancel the jam if we did'nt take care of it...they
wanted no part of a lawsuit !!! I called XXXXX XXXX of Seattle Folklife
since he had been going around and around with ASCAP for years.....he
said I could play "dumb" for a while, have them address all thier notices
to me instead of the club....but eventually I would probably have to pay
them.
So I sent them a letter thanking them for thier interest in our
little jam session , but we really were not interested in thier product
!!! ......This must have taken thier lawyers many months to figue out
because I did'nt hear from them for about a year. Then they sent me a
letter saying we HAD to pay for any music played where the public was
able to come in and listen......I wrote back and told them people
wondered in and out, there was no fee charged and no one got paid....I
had my name on the jam because I opened the door and made the coffee.
They said I would have to go around to the various circles that were
playing music and write down all the songs that were being played and
send them a copy of the songs....I wrote back and told them I was a busy
person and if they wanted to come and write all that down they were free
to come and do it themselves.........I think I also told them they really
needed a good PR man....because the way they came across smacked of Nazi
Germany.
Then they wrote and said I could send in a form they would send
me...and I could send it in every 3 months, just paying for the number of
chairs we put out for the jam ...which by my figuring we owed them about
20.00 a jam.......so thats what I send them, 60.00 every 3 months and I
don't call them ....I don't want them even thinking about us, under the
radar so to speak !!!
The Concert is another story,...a different venue completly and the
writers of the songs being performed should be compensated ( the magic
word is SHOULD BE ).. we're selling tickets to the public....were hiring
Bands, paying for the venue, paying for insurance, fire inspection, sound
man, refreshments, printing expenses etc......after taking ALL expenses
out, we pay a % of the net to ASCAP, I send them a program....they seem
to be happy with that and as long as they don't bother us, we won't
bother them.
I think its a scam of the ist degree to charge for holding a free
jam session......a Festival or a Concert where money is passing hands is
a different animal. As I said we hav'nt been found by BMI and I'd like to
keep it that way......**.so if you use any thing in the article that
that I've written here...please don't mention my name , ....after 16 yrs of using the Community Club, I'd hate to have
to find another place to jam.
I know a number of Coffee houses where we jammed in years past
either closed or quit having music because of the financial hardship of
paying ASCAP....just because 4-5 people would come in and sit in a circle
and drink coffee while they jammed for fun..........sometimes we were the
only ones there too ( not much profit in that).
The discussions have been interesting and I personally don't know
what do do about it...they ( ASCAP, BMI) have the money and the big
lawyers....all I can do is pay as little as possible and keep a low
profile !!!!! ( Quiet, but still smoldering) XXXXXX"


And there you have it. Kenc

[Jerry Byers]

This may have been asked already - there is so much here to digest - but what if a jam starts up and everybody is playing original tunes or the music was written by one of the players. Does it now become the responsibility of the owner of the establishment to know this is a jam session of original music? There are no royalties to collect and BMI, ASCAP, whatever doesn't have a leg to stand on.

[August Watters]

Ken, if you (or someone closer to Boston) want to do that workshop at the Joe Val Festival, let me know. I'm finishing the workshop schedule now. It seems like a topic the bluegrass community needs to be discussing.

[Mando Medic]

Hi August, Miss our phone conversations. Thank you for your invite to the festival. Just went to the web site to check it out and what a lineup. As a full time school bus driver and full time repairman with a music store, it's just too short of notice for me to come. However, I'd love to come next year and do a workshop for you on BMI and ASCAP as well as a mando tasting etc: I appreciate your contributions to this subject matter. I'm no expert, but I'm sure getting a great education. My intent is to follow this as far as I can go with it and if it takes the rest of my life, I'll fight for the right to jam with no license. By the way, I am, and have always been a huge Joe Val fan. God, I'd love to be there. Thanks, Kenc

[Jonathan Peck]

Sounds like this is the real problem. Anyone know if ASCAP or BMI disclose what percentage of fees collected go to artists?

ASCAP, according to their website, keeps 16% for overhead and distributes 86% to it's members

Let's say that 'hypothetically' they sell one million license agreements at $100 a pop. ASCAP would keep 14 million dollars and distribute 84 million to it's members.