NASCAP charging for bluegrass jams!?

[Newmexmandoboy]

I just proposed to our local watering hole that they host a bluegrass jam. The bar lady claimed that they don't do live music anymore because of NASCAP fees. I asked if they could really charge them for old traditional tunes and she claimed yes. She said they even charged them when they had a musician playing his own original music.

This doesn't compute at all. Has anybody ever heard of such craziness?

We are in a small town with only one bar that is heavily watched by the cops, but I can't imagine that could have anything to do with it.

Very perplexed...

[bfriedman]

What is NASCAP?

[PJ Doland]

It's a stock car auto racing association for songwriters, composers, and performers.

[allenhopkins]

They mean ASCAP, I think. This has been an issue sort of hanging like the proverbial Sword of Damocles over folk clubs, church coffeehouses, house concert sponsors, jams and seisuns (other than those run in venues with regular entertainment, who've purchased ASCAP licenses).

If the law is enforced strictly, any public (and "public" defined very broadly, "a public place where people gather [other than a small circle of a family or social acquaintances]") performance of ASCAP-registered material, and any use of such recorded material for broadcast, background music, karaoke, etc., requires that the sponsoring venue buy an ASCAP license. The penalties apply against the venue, not against the person performing the material. The license is required whether or not performers are paid or admission is charged -- yeah, really!

Here's ASCAP's explanation of its requirements. And, I should note, the requirements for BMI, the other major music licensing agency, are quite similar.

Now, before the fit hits the Shan*, and everybody panics, note that this requirement is effectively unenforceable. ASCAP does have local reps in certain areas who visit places where there's music (including background recorded music), and report this to ASCAP, and ASCAP can choose to go after non-licensed venues. But there are a gazillion bars, folk clubs, churches with coffeehouses, Grange Hall jams, etc., and no way ASCAP can "police" all of them, or would try to. They make their big buxx from radio/TV stations, major concert sponsors, "canned music" services, record companies, etc. It's not cost-effective for them to go after Charlie's Monthly Old-Timey Jam to browbeat Charlie into paying a $300 annual fee, or whatever. And, of course, Charlie will just discontinue sponsoring his jam, Cindy will take it up at a different location, and ASCAP will have to start all over again.

A venue that regularly sponsors music, charges admission, advertises widely, and books high-visibility musicians, had better have a proper license. It's worth ASCAP/BMI's while to go after them. And it is very hard to avoid the requirement by "requiring" that performers not perform ASCAP/BMI material. There's a Buffalo coffeehouse that only booked performers who would agree to do non-ASCAP/BMI-licensed original material, in an attempt to avoid licensing payments. But, are we to assume that in 20 years no one ever slipped a Bob Dylan or Bill Monroe song into a set at any time? Strains credibility.

Venue owners do get scared -- and rightly so, if another sponsor in the area has been taken to court by ASCAP or BMI. But I think the bar owner who avoids any live music to avoid buying a license, is being a bit over-cautious. And besides, if she has a DJ, or even music playing over a sound system, ASCAP requirements can apply.

This is my summary, as a non-lawyer who's kicked the question around just a bit. I'd guess that none of the venues sponsoring small-scale, informal music in my area has purchased a license, but I may be wrong. Here's a four-year-old local article about ASCAP going after a Rochester club; it mentions that they've also contacted area towns that sponsor summer concert series. So license enforcement is going on, but I doubt a small-scale jam in the back room of a bar, is going to be high on ASCAP/BMI's "hit list."

* old joke reference: "Where were you when..."

[Newmexmandoboy]

Thanks for this summary. I apparently had misheard the bartender and was going nuts searching in google for "NASCAP music"... not much shows up.

They seem have punished our local place to the extent that they have given up on live music. Do you have any idea how much such a license is?

[allenhopkins]

...Do you have any idea how much such a license is?

The Rochester club that was being sued for allowing four Iron Maiden songs to be performed during a "Heavy Metal Night" charity event (!) was asked to pay about $1600 annually, I think. License fees are based on the size of the venue, the frequency of performances. You might want to check the link above to get ASCAP's fee schedule. I think folk clubs with monthly concerts and periodic open-to-the-public jams or sing-arounds, were expected to pay around $500 annually. I'd guess that if the only music sponsored was a weekly jam, without a significant admission charge, it might be less.

[Newmexmandoboy]

Interesting discussion. Helps a lot to have the acronym correct!

http://www.folkjam.org/forum/topic/f...m-vs-ascap-bmi

[Willie Poole]

Yes it is a royal pain in the butt...Allen, you might know, I have heard that ASCAP/BMI don`t have any legal righjts in some states...Can that be true?...I recall many years ago my band had to quit playing in the lower part of a club because the band that was playing upstairs were members of the musicians union and we weren`t at that time....

Everyone is out to make a buck the easiest way they can....Paying royalties for recording songs on a CD is also a pain .....

[bfriedman]

Thanks for clearing that up. The correct acronym certainly helps.

[jim simpson]

Isn't this why when a birthday song is sung by the staff at a restaraunt when they present the cake, they sing "happy, happy, happy" to a different melody than "happy birthday" plus some really fast clapping?!

[pjlama]

I had a bad experience playing a bar a while back where once I started the manager got pretty weird a said only original music sighting ASCAP as the reason. Towards the end of the evening I ran out of esoteric material and started in on some recognizable stuff and was asked to stop. The gig really sucked because of this guy freaking out the whole time. Needless to it was the first and last time at that venue.

[Paul Kotapish]

The performance-royalty issue is a real problem for venue owners. There are a handful of coffeehouses in the Bay Area that attempt to walk the very narrow line of original-or-public-domain-material only, but most either pay the fee or ban live music and end up paying for Muzak. (Radios and CD players in public places are subject to fees, too.)

While a large club with live music every night might pay some hefty fees, in most cases I know about, smaller venues with only occasional music have been able to negotiate pretty reasonable fees.

It's a tricky algorithm. We all want to play out and to see live music thrive. Likewise, most of us want to see songwriters rewarded for their efforts, too. Finding the balance is the hard part. It's especially galling for small places specializing in various forms of relatively obscure music. Because royalty distribution is calculated largely bases on radio-play data, very few of the artists whose songs and tunes are getting played in the little venues are seeing a dime in actual fees. The big slices of the royalty pie go to the songwriters with big hit records.

[Newmexmandoboy]

Around here it is quite common for jams to be held in churches. In our county we do seem to have an overabundance of them and maybe it's just the case they are easy venues to schedule, but could it be that they are somehow exempt from being a "public" place? Or at least ASCAP/BMI is much less likely to pursue churches? Most churches that I've been in don't serve beer, which makes me far less inclined to attend a jam at a church.

[allenhopkins]

Isn't this why when a birthday song is sung by the staff at a restaraunt when they present the cake, they sing "happy, happy, happy" to a different melody than "happy birthday" plus some really fast clapping?!

Yes. Happy Birthday To You, written by the Hill sisters as Good Morning To All, was copyrighted in the 1930's and, under subsequent copyright law revisions, will be under copyright until perhaps 2030. The copyright is now owned by a subsidiary of AOL Time Warner, and reportedly generates $2 million annually in revenues. (Informative Snopes article) Whether the song is licensed under ASCAP or not I don't know, but every time it's used in a movie or TV show, composer royalties go to the copyright owner.

As to churches: can't be definitive, but what I read suggests that while churches aren't exempt from licensing requirements by law, ASCAP and BMI don't go after them because if they did, the law would be quickly rewritten to exempt them. Same, apparently, for schools, either public or private. What if the school had to get an ASCAP license before the chorus could sing Wind Beneath My Wings or some such at the annual assembly?

There is a ton of legislation and legal case law on the subject, with which I'm largely unfamiliar, and I commend a nice thorough Google search to those who want to get real specific in this area. Revisions of the law (which, by the way, is Federal law -- interstate commerce, remember?) have exempted certain "food service establishments" from some of the licensing requirements for "background" non-live music, based on size and number of devices. Some lawyers are probably making a good living litigating these laws; me, I just want to avoid running afoul of them. One would probably be pretty safe holding a jam in a church -- although, if the church made its space available to another organization (folk club, bluegrass association) for a jam or sing-around, that organization might be liable for license requirements, even if the church weren't named as a party to the action.

[Polecat]

This is not just an american problem. Here in Germany the equivalent of ASCAP is called GEMA, and they are just as virulent (sorry, I meant vigilant). Not only have they drastically increased the prices for live music, but they also have started charging kindergartens for photocopying childrens' songs, demanding money from Christmas Markets for playing christmas carols and so on. The reason for this appears to be that since the market in recorded music has effectively collapsed due to the possibilities opened up by the internet, they are no longer making what they regard to be enough money, and are exploiting every means they can to rake in the cash. The effect of this is basically to destroy grass-roots musical culture, be it traditional "folk" or any other (I would argue that notwithstanding copyright, a song like "Happy Birthday to you", Irving Berlins "Blue Skies" or the Beatles "Yesterday" are de facto in the public domain, or are the "representatives of artists' interests" going to start stopping people on the street and fining them for whistling a pop tune?). As you may have gathered, I feel rather strongly in this matter - for good reason - the landlord of the bar where my band has been playing regularly once a month received a threatening letter and incomprehensible form to fill out regarding our performances, and is now too frightened to let us continue playing there. We charged no entrance fee, passing a hat around to make a little pocket money, but basically doing it for the love of the music. I understand the need to look after the interests of musicians and composers if other people are going to exploit them to get rich, but to effectively stop a small band from playing music for their own and the clientelle of a bar's pleasure, in whose interest is that?

[Mark Hudson]

I'm not awfully familiar with this whole issue, but just to give you an idea of some of the esoteric applications of the law, if you run a small business and have a radio playing behind the counter, no problem. If you pipe the same music through your PA/intercom whatjamacallit then you need a license... I'm not exactly sure if it applied to radio stations or just to playing CDs and such, it's been a while since I heard about it, but you can split hairs all day with this one :-)

[MikeEdgerton]

It applies to radio stations piped out over the PA as well. There was a documented case of a furniture store that got caught up in this a few years ago.

[greg_tsam]

The local music venue hosts live music only and has musicians playing dinner music and then a main band from 9-2 most every night, originals and covers. ASCAP came by and threatened them with $20K-$50K in fines and fees and kept them scared and in negotiations for 6-10 months until finally settling for approx $2500 in fees. Now everything is back to normal. Just extorting their fees and getting paid.

[MikeEdgerton]

If you are a highly visible venue then you will get a visit from one of the agencies that collects fees for artists and composers. The biggest one I know in NJ has theirs displayed on the wall in the back of the venue. This isn't new stuff and has been discussed here a few times. It's part of the way that artists make money.

One previous thread and another

[bfriedman]

Does anyone know of any members of the mandolincafae.com forum that have received a royalty check from ASCAP? this has been an interesting read.

[MikeEdgerton]

There are a lot of artists that are members of the cafe and don't post. I'm sure some have, but I wouldn't expect an answer. If you're wondering if they really pay the artists the answer is yes.

[allenhopkins]

This thread may well head for a shutdown, since pretty soon we'll be talking the politics of copyright, licensing, and the "rights" of performing musicians and corner-bar owners vs. the "rights" of songwriters (and companies that buy songwriters' rights, and accumulate a number of copyrights) to get paid when others make money by using music they've created.

We can find a lot of examples of small clubs, furniture stores with "ambient music" playing, people sponsoring concerts in their houses, etc., who have been "leaned on" by ASCAP or BMI. In many cases, these venues decide to stop sponsoring music rather than pay licensing fees. That's a loss to performers, to the community, and, in a way, to the songwriters as well, since they don't get any royalties from the venues, and lose the opportunity to have their music heard and appreciated. On the other hand, ASCAP/BMI come on strong, threatening big fines, but in the end usually negotiate a relatively reasonable settlement with the "offenders." After all, it's not in their interest either to shut down venues where music is played!

The other factor is what I mentioned in my first post: the laws regulating copyright and licensing are in many respects unenforceable. ASCAP/BMI would have to recruit thousands of local reps to cover every corner bar with an "open mic night," every community-center bluegrass jam, every pizza place that plays the "oldies" channel through a sound system. They are going to concentrate on more high-profile, lucrative "targets." Not exclusively, and we'll find examples such as Polecat and Greg T cite above, but I doubt that many small venue operators are up late worrying about ASCAP.

One point: in the current economic downturn, when sales of "physical" recordings (CD's, etc.) are 'way down, and concert sponsors are cutting back, there's incentive to go after more revenue through license enforcement. We may be seeing some of that.

And the other argument that's been brought forward, that "music is free" and charging people to play Beatles songs or Happy Birthday is somehow "wrong" -- well, if you'd written Yesterday and were watching thousands of people make millions of dollars recording and performing your song, and you were living in your parents' basement and gigging at a local pass-the-hat club on the weekends -- because no one was enforcing your right to be paid for your work -- there might be a different point of view. Creative people should have the right to be compensated for their products, just like electricians, carpenters, and video-game developers. How those rights are enforced, that's a question that raises a lot of the issues we're discussing.

[Polecat]

This thread may well head for a shutdown, since pretty soon we'll be talking the politics of copyright, licensing, and the "rights" of performing musicians and corner-bar owners vs. the "rights" of songwriters (and companies that buy songwriters' rights, and accumulate a number of copyrights) to get paid when others make money by using music they've created.

I hope not, because its pretty important for people who perform in a non- or semiprofessional context

...the other argument that's been brought forward, that "music is free" and charging people to play Beatles songs or Happy Birthday is somehow "wrong"...

I don't think anyone here is trying to defend that point of view

Creative people should have the right to be compensated for their products, just like electricians, carpenters, and video-game developers. How those rights are enforced, that's a question that raises a lot of the issues we're discussing.

That is precisely the point - ASCAP, or GEMA, or any other of these organisations should really rethink their policy regarding live music - apart from the example I gave above, I recently played in another bar where I asked the landlord about GEMA - he immediately became incandescent and told me that he had recently received a visit from 2 representatives demanding money for playing CDs - fair enough, the fee, though stiff, is justified. But they then went on to tell him if people danced to the music the fee would be increased, and in answer to his question as to what he should do if one of his customers got drunk and started dancing, they told him he is required to inform them "at a later date" and pay the fee retrospectively. As regards our gig, he hadn't informed the authorities and didn't intend to, suggesting a very dark and smelly place they can put their paperwork. The situation is ludicrous, and the policies of the copyright enforcement agencies hopelessly out of tune with the situation on the ground. It is interesting that this wasn't a problem ten or fifteen years ago (at least here in Germany), but has emerged parallel to the "download revolution"; one is tempted to believe that ASCAP or GEMA are less interested in protecting the legitimate rights of artists, and more in ensuring that they create sufficient income to further justify their existance; why else are they now interested in small gigs which used not to bother them, and why have they hiked their fees up by such an extent (I'm told, depending on the venue, between 300 and 600%)? As regards getting paid, the bass player in my band was formerly in a heavy metal band glorying in the name of "Chinchilla", and recorded a couple of albums with them. He tells me that the money he recieved was far less than the yearly subscription fee, and he has subsequently left GEMA. I hope this isn't all to incendiary and controversial, but I feel very strongly in this matter.

[Mandobart]

"Creative people should have the right to be compensated for their products, just like electricians, carpenters, and video-game developers. How those rights are enforced, that's a question that raises a lot of the issues we're discussing."

Early in my career I designed and built some decontamination equipment for use at a government facility. My company and myself were paid to to the job. It sure would be nice if I continued to get paid every time they used that equipment, or trained someone on it, or took pictures, or thought about it. Or how about auto mechanics; they could get paid to fix your brakes, and then get royalties every time you use those brakes. It'd be neat for plumbers if you paid them when they replaced your toilet, and then paid them again every time you flush it. I have an even better idea - ASCrAP could fine composers that write lousy, unimaginative drivel for wide spread commercial broadcast. They'd have to pony up every time their crummy song got played.

[Willie Poole]

There is a well known club here in Bethesda Md. and one night Bill Emerson was playing there along with Cliff Waldron and a couple got up to dance and Bill just stopped playing and said "If you dance, I don`t play, if I play, you don`t dance"...The fact is that the club did not have a permit to allow any dancing even though they had a small place that looked like a dance floor....

My band used to have a cloggers club that followed us wherever we played and after a while I never seen them show up any more and I wonder if they got told by some club owner that dancing wasn`t allowed and they just stopped so as not to cause any conflicts....

I bowl every Monday and Friday nights and during open play they play videos over the telescore system and I wonder if ASCAP has ever gotten on them, I`m afraid to ask....Those might be coming from a central location and broadcast by Brunswick Corp to all of their houses, if that is the case I`m sure it has been taken care of....

Interesting stuff....Willie