Okay, so here we go. I just talked to BMI New York's research department, who referred me on to their General Licensing department in Nashville.
Apparently, BMI's stance (and I will be clarifying this with Linda Mitchell, this area's BMI licensing rep) is that ANY public performance in a business that makes any kind of income (regardless of whether that income comes from the performance of that music or not) during the performance of that music must have a license attached to it, whether BMI's members and benefitors have written that music or not. (I have not been able to ascertain whether BMI considers the Irish music session to be a performance or not. I hope to have this clarified soon.)
This stance would apparently be in direct conflict with the letter written by Marilyn Kretsinger, Assistant General Counsel to the Register of Copyright in her letter of November 27, 2001 (which the text therein can be found at http://users.westelcom.com/minstrel/kretsinger.htm), I will be trying to get an official representative of BMI to send me a written explanation of their stance on the traditional Irish session so that I have something to work with. I will be contacting the Register of Copyright to see if there are any changes to their stance since the time of that letter.
However, Ms. Kretsinger's letter does put the burden of proof of public domain onto the owner of the establishment (and therefore the performer). This would seem to imply on first glance that musos would need to have a set list of all the tunes that they have researched and discovered to be within the public domain. They would then be unable to "perform" any tunes not on that set list until the tunes have been researched and found to be in the public domain (or "PD" as the nice lady in Research called it). This would put something of a crimp into the natural ebb and flow of your normal session, but as more tunes were researched and that research shared by musos, it would get easier to simply provide a huge list of tunes that would be in the public domain and thus available to be played.
My thought is that since there are many tunes whose composers have been lost in the mists of time, the Register of Copyright or similar governmental entity must have some way of dealing with these things. That'll be another item on the "to-do" list -- finding out what agency deals with that and such.
The mind boggles...I just had this dizzying vision of an organization that exists only to prove whether a tune is in the public domain or still within copyright and shouldn't be performed without payment -- and a way for composers of tunes to assign the tune to the public domain easily...come to think of it, I have a non-profit organization all set up for that already....wonder whether that would be a good use for it?
Anyway, my thought is that we need to get an official statement from BMI, ASCAP and other performance right organizations in order to keep them from being able to use these rather extortionistic tactics on our pub owners (my theory is that this is why we're having a terrible time getting such a thing out of them). Once we have that, we have something that musos can give to their pub owners to give to the reps who go further than BMI's actual charter and mission, AND if we don't agree with the definition as provided, we can use it to force a change through legal channels.
Comments, ideas, and thoughts welcome, the more brains involved, the better.
"...ANY public performance in a business that makes any kind of income (regardless of whether that income comes from the performance of that music or not) during the performance of that music must have a license attached to it..."
Does this take into account whether it is a paid performance or not?
Apparently it does not. If the owner is making ANY kind of income from or during a performance of ANY music, so far the spoken definition given to me by the lady in research is that there must be a license. This seems excessive to me, and worth challenging.
In other news, Marilyn Kretsinger is still the Assistant General Counsel to the Register of Copyright, Marybeth Peters. (David O. Carson is the General Counsel) I hope that this is good, as she may remember the letter and will be able to tell us whether it was indeed an opinion that would hold up in a court. I hope to find a way to contact Ms. Kretsinger soon.
"Note that we are prohibited from giving specific legal advice and opinions. In addition, we are unable effectively to answer questions that raise complex issues and require a dialogue. In such situations, we may encourage you to contact us by telephone at (1-202) 707-5959."
I'll try giving them a call tomorrow. Interesting that -- I wonder if that letter was written because Kretsinger was writing to a Congressman?
What is the purpose of tapping them on the shoulder and asking if it's ok what is going on? I mean... how many sessions across the US are being played every night without worrying anyone about this? Is it a good idea to bring attention to the tradition? I'd hate to think someone at BMI being being hired to take pubs to task for hosting sessions, simply because we felt it was important to educate them about it.
Thanks for your effort in looking into this. The same sort of outrageous bullsh*t is being attempted in Ireland, only there, it's various politicos in Comhaltas who are attempting to corner "rights" on all performances of traditional music on the island.
The question was asked "is it a good idea to bring attention" to this, or ought we better just keep our heads down; a fair question.
There may be a useful parallel here with the relatively recent concretization of airline regulations regarding musical instruments as carry-ons. Post 9/11, the assistant director of the Transportation Security Administration was prevailed upon to write a letter to the President of the AFM (American Federation of Musicians), laying out, in clearcut language and detail which had *never* previously been available, the TSA's policies and dicta to the airlines. The document, though very brief, clearly states that musical instruments are *not* to be counted as part of the "one carry-on and one personal item" allowance, and at least implies that musicians are to be facilitated in treating their instruments as legitimate carryons. AFM Local 1000, the cross-country local for folk musicians, has a pdf of this letter (on TSA letterhead) on their website (at http://www.local1000.com/carryon.php). I have a laminated copy in every instrument case I own, and it's saved my butt on several occasions. I've also noticed that, post-9/11, for the first time airport security people actually *have* a standard set of procedures for dealing with instruments: this is good, as it precludes people just "making up the rules" as they go along.
I mention this because we might have an analogous situation here. If Zina is able to get a BMI/ASCAP/copyright person to understand the unreasonableness of rigidly applyign copyright concepts to anonymous folk tunes, and put that understanding into writing, that document could be as useful as the TSA document cited above.
Not all people in suits really *want* to do in the Music. This issue also seems like a very good candidate for an Internet-based electronic-petition campaign a la MoveOn.org
A copy of the e-mail I just sent to the US copyright office:
Hi:
I'm currently investigating BMI and ASCAP licensing issues and need help. I am a musician, playing Irish traditional music on the fiddle.
There are two issues that I believe I need help on (though I am fairly sure that those two issues will lead to others).
First, though I understand that you are unable to give legal advice and/or opinions, I do need to know if the opinion that Marilyn Kretsinger gave in her letter of November 27, 2001 to The Honorable John M. McHugh is still the current opinion held by your offices. (The text of this letter is found online at http://users.westelcom.com/minstrel/kretsinger.htm)
Second, I would like to know how the Library of Congress and the Copyright Office track Irish traditional music. Ms. Kretsinger's letter to Mr. McHugh essentially lays the burden of proof upon the owner of the establishment and thereby onto the performer. Many of the tunes have unknown composers or composers who lived over 100 years ago. Even now, many composers of tunes in the genre of Irish traditional music consider their works to be in the public domain (although I currently assume that most have no idea how to formally go about doing so; I don't know myself).
How do we go about discovering whether tunes such as "The Maid Behind the Bar" and "Brian Boru's March" are in the public domain? I was unable to figure this out from the website. I can't imagine, however, that we're the only traditional musicians to need this sort of information; bluegrass and Applachian and other traditional folk musicians must surely have need of the same sort of info, so I am hoping that you've something on this kind of topic for me.
Thank you for your assistance. I will look forward to your earliest possible reply!
Thanks, Coyote - that was very helpful. I haven't been flying as much lately with the fiddle as I used to, but that link should be on every trad page out there.
Zina - Keep at it. BMI sounds like they're pushing reality and legality quite a bit there. Let us know what you find out, but I don't see how their position can be legal if the works played are not licensed in some format.
Here in Ireland, an IMRO license is required by any business which plays music (including recorded music!) in a public place. Since nearly all pubs play CDs, they are required to pay a license fee regardless of whether or not they host trad sessions. Citing the license fee as a reason for not hosting a trad session therefore strikes me as disingenuous! I believe it ought to be possible to obtain an exemption in the case of pubs which are committed to the playing of live trad music only, and to never, ever, playing any form of pre-recorded music, but in reality, how likely is this?
While I acknowledge the flaw in the system, I am a little wary of the tendency to demonize IMRO and its related organizations. Composers and songwriters have a right to some return on public performances of their work (otherwise thy don't eat). They are not all millionaires, and many of them are struggling.
There was a discussion thread a while back about members' day jobs, for some people this IS the day job, and a precarious one at that. What I'm saying is, by all means deal with the problem,but bear in mind that these organizations are not just big, faceless corporate machines. They collect royalties; and those of us who write and arrange music are very glad that they do!
Muireann - I agree that composers should obtain royalties for their own works, and if someone plays an exact arrangement of a traditional tune that's a situation where royalties should apply, but I've seen to many "arranged" versions of trad tunes that are nothing more than writing down the ornamentation that's been played in sessions for years (and I don't think that because a trad tune has been arranged by someone means that the trad tune itself is copywrited).
Just so you don't think I'm anti-composer or royalties, my uncle makes a living writing music that is predominantly played by others like Eric Clapton (my uncle is JJ Cale) and my wife's uncle is a long time struggling blues musician up in Wisconsin.
Royalties are perfectly fine when properly applied, but I don't think BMI is properly applying the laws and regulations over here in the USA.
Am I being naive or nieve?
In Li'l Ol' Englandland, we thought BMI was Body Mass Index and was talked about all the time in the US of A due to amount of hamburgers eaten (touchy subject lately), but we seem to be wrong.
How does this silly legislation deal with arrangements written by the person playing?. If you are not playing from dots and play some variations, isn't it your own arrangement?
To quote Neil Kinnock, it sounds stupidly daft and daftly stupid.
I don't know the details of the legislation in the US, but it seems to me that the old Law of Unintended Consequences may be at work. It is a law you'll find in no legal textbook or in any statute, but tends to come into force when other legislation reaches a certain level of complexity.
In the UK we have something called the Data Protection Act, and it seems that earlier this year the Law of Unintended Consequences came into operation with tragic effect, as follows.
A young man applied for and got the job of janitor at a village school. He later murdered two 10-year old girls from the school and has since been convicted and sentenced to life (in the US he would have got the death penalty). After his conviction it came out that a few years previously he had been very closely associated with the rape and molestation of several young women and girls, and a burglary, in his home town a couple of hundred miles away, but was never charged or appeared in court, although the burglary charge was apparently allowed to remain on file.
The police in his home town did not release this information because of the Data Protection Act when the school authorities researched the guy's background. If they had, it would have been absolutely certain he would not have got the job of janitor, and those little girls would have been alive today.
Well, I'd say it's some over-enthusiastic BMI/ASCAP reps who are rather mis-interpreting the BMI and ASCAP thing. (From what I hear, they're paid by the job.) When Mary and Dallas first opened their pub, BMI threatened them with a lawsuit before they'd even gotten the doors open -- they had *proof* that Mary and Dallas were having music there, and in vain did Mary tell them that they hadn't even gotten tables and chairs into the place yet, BMI was *sure* that they were having performances in the place and were therefore going to sue them out of existence before they even came into existence.
This time, Dallas is furious because the rep threatened Mary, saying that he'd sent a letter to Dallas AND talked to Dallas as well, and Dallas says that he hasn't talked to anyone from BMI since the first time they went round with them. So they've caught the rep out in another rather big lie and are in a mood to pursue the matter.
Me, I'm sick of hearing these stories. What I'd like to do is try to find a way to force the issue so that we can have some kind of landmark decision or case made by the Authorities That Be to keep musos from being able to play. If we can get a letter or opinion or case together, then every other muso in this position will be able to show proof to pub and bar owners to give to BMI and ASCAP and other performance right organizations.
Otherwise, it's back to houses and church basements for us all, eventually. That wouldn't necessarily be a terrible thing, but it would definitely change our global community in a large way.
in regards to the license paid for the playing of CDs, our pub uses a music service from AT&T, which is like Muzak. The license is paid for by the music service, and the pub pays the music service in turn for it. They can even choose what kind of music they want to play (and in fact often choose the traditional and modern Irish "station" although usually it's class rock) over their music system (which is limited by square footage and number of speakers allowed to that square footage, in order to meet BMI/ASCAP regulations).
So, no, directly, they have no license because their licensing is indirect.
Had a similar problem when living in Italy where we were required to fill up a sheet with the list of music we were intending to play BEFORE starting. Inspectors would drop in from time to time with serious financial consequences for the bar owner if this list was not completed.
We got around the issue by listing almost all of the tunes as ANON. and therefore no royalties were due.
I'm looking over the letter Dallas got from ASCAP, and I'm looking at the on-line database of tunes that ASCAP "protects."
(at www.ascap.com under the ACE Database.)
The letter claims that we need to "obtain permission to perform music in the ASCAP repertory at your establishment. It is much simpler and less burdensome to obtain a single license agreement with ASCAP than to secure permission on an individual basis from our members to perform their music in your establishment."
It is interesting to note that they have "the Mason's Apron" listed, which is in O'Neil's collection of completely provably-traditional tunes. Also they have "Trip to Durrow" listed as having been "written" by "Patrick Maloney." Also in there is the "Sligo Maid's Lament." which I have on an old Seamus Ennis recording. They claim it was "written" by Naylor Oscar.
I'm going to find out as much as I can about this...
Part of the problem is that you can't copyright a title. Just because ASCAP lists "The Mason's Apron", "Trip to Durrow", and "Sligo Maid's Lament" as protected, it doesn't mean that these titles refer to the traditional tunes that go by the same titles. Another part, as mentioned before, is that sometimes it's the arrangement that is protected.
The PROs are in a rather difficult position. There's no reasonable way for them to check whether any particular tune or arrangement that gets performed is registered with them. They have to do business on the assumption that at a public performance venue, a certain percentage (on average) of the music performed is in their catalog. For most venues, that's probably a fair assumption. For some types of venue, it's likely that they are way off.
Part of the problem is in convincing them to look closely at the exceptional venues, realize that they are exceptional, and create a more realistic, and reduced, fee structure.
But I expect that most venues that think they are exceptions really aren't. We all know of the pub that has a session once or twice a week and performers Thursday through Saturday, for example. Even if the performers do popular Irish pub songs, I'll bet a minimum of 75% of what they play is under copyright. Think Christy Moore, Luka Bloom, Eric Bogle, Ewan MacColl, Ralph McTell, and much more. If the pub owners are using the performance of songs by contemporary authors in an attempt to generate business, then the songwriters deserve compensation.
And even in the session, there are plenty of recently composed standards (Fahey, Crehan, Reavy, Ryan, etc.) for which the authors (or their heirs) are entitled to compensation when their tunes are played to encourage patronage at the pub. Of course most composers of session tunes know full well that they're not going to make any money this way, and would be happy just to know that their tunes are being played. (Of these four, only Fahey is listed in ASCAPs database, from when one of his tunes was recorded by James Galway. The other three are in BMIs database, but only two of their specific tunes are listed. In contrast, Liz Carroll has 51 tunes registered with BMI.) Still, it is the performer's responsibility, as a courtesy to the author, to obtain permission to use the tunes. On the other hand, as a practical matter, this is impossible.
But couldn't the composers simply put their compositions in the public domain? If they did, it would be like throwing away a lottery ticket before the drawing. What if some company used their tune, which they gave to the public, in a huge TV ad campaign? What it was on the soundtrack of a major motion picture? So composers are in a bind, too.
So back to the pub, but now one that has only a traditional instrumental session once a week and no other music. Now, instead of a large percentage of protected material, it's a much smaller percentage, maybe 10% or so. And the composers aren't (for the most part) expecting any compensation (though they'd be entitled to it). Problem #1 is that the PROs are still obligated (by their composer members) and entitled to collect. Problem #2 is that the money they collect is distributed (at least in the US) based on airplay samples. Genres that are below the pop culture radar don't make the cut, and the composers get little or nothing. Problem #3 is that the PROs don't recognize this situation and attempt to collect as if it were the pub with the bands that play mostly contemporary covers. Problem #4 is the strong-arm tactics that Zina described.
At this point, I spent 45 minutes or so digging around on the databases. Ironic discovery: Shannon & Matt Heaton and Beth Leachman are listed as composers of "Reel of Rio", which was actually written by Sean Ryan. (It looks like when they were registering their CD, they confused the artist and songwriter/composer categories.) But anyway, I've now lost track of where, if anywhere, I was going with this.
Anyhow, it's an extremely complicated issue. The North American Folk Alliance has been negotiating with ASCAP and BMI over it for the better part of a decade without much progress. Here's a brief report from them: http://www.folk.org/Advocacy/advo1003.htm - scroll down a ways.
One thing you might want to do is record your sessions every week. If you record in mono on minidisc, you can get 2.5 hours on a single disc. Keep an archive as evidence to use in case it comes down to a lawsuit. Maybe after each set of tunes, someone could say the titles.
Just being able to say that you have such recordings might scare the PROs off.
Well, that's more than enough from me.
OK, one more thing. Way back when, Morgana asked whether it made any difference whether or not it was a paid performance. It doesn't matter who is getting the money. Copyright, in theory (and presumably in law), means that you need a license (i.e. permission) to perform a work in public. That could be as simple as phoning your buddy and asking if you can play that tune he wrote at a benefit for poor little Sally's ailing hamster, or as expensive as buying an ASCAP and BMI blanket license covering their entire catalogs. (They base their fees on the type of venue - store, bar, restaurant, community hall, theater, etc., capacity, and frequency of performance - or something like that, approximating potential revenue - not on what the actual revenue is, how many people are listening, or how many songs from their catalog are actually used.)
No real beefs with your points, Gary, except for the Problem #1: ARE the PROs entitled to collect on traditional music? At least for the tunes that no one knows who wrote them? That's what I'm hoping to find out from the Library of Congress...
Anything published before 1923 is in the public domain, according to current US copyright law. Anything else is probably protected by copyright unless the copyright holder failed to follow the required procedures (like putting the little c on it, which was required until 1988). The PROs are entitled to collect on any copyrighted work that is registered with them by the copyright holder.
"Happy Birthday" was written in 1893 but not published until 1935. It's protected by copyright (owned by AOL/Time Warner) until at least 2018. Public performances require a license. AOL/T.W. make over $2 million per year on this song.
Enya was sued for using (without attribution and without paying royalties) a verse to "How Can I Keep From Singing" that was written in the 1950s. She won the suit because the author had failed to protect her copyright by permitting Pete Seeger to record it earlier without attribution. But Enya was guilty of not doing the proper research and just got lucky.
The Kingston Trio was sued (they settled out of court, probably because they would have lost the case) for using a copyrighted version of "Tom Dooley". They could have done the research and found a public domain version instead, but they didn't.
I've summarized these examples from a very well-written article by Peter Irvine, who is an entertainment lawyer and a musician (member of Cordelia's Dad, a now-defunct, or perhaps very occasional, band that performed mostly traditional music). The article is in PDF format at http://www.peterirvinelaw.com/pdf/Folk_Music_Copyright_PD.pdf .
Yeah? Except that The Mason's Apron shows up in the ASCAP database as "written by" one CARR EAMON JOHN, along with Silver Spear and over 70 other common tunes. Does that mean the tune is copyrighted by him, or the arrangement? (Do we need to make up settings of each and every common tune that everyone who records then needs to swear that they will never record so we have something left to play out *with*?) And if he happened to have recorded a "traditional" arrangement (or, in the case of our particular music, setting and variations) rather than one he made up himself, what does that mean when you consider that we all do that setting and similar variations and have for quite some time before CARR EAMON JOHN was born much less recorded?
How the hell do you put a little copyright notice on a tune that's passed on aurally?
The trouble is, this is a form of music that *is* passed on aurally and is mainly played by amateurs, in arenas such as public spaces. What I want is for everyone to know, bald-facedly and obviously, whether it's actually illegal for us to play out, because if it's illegal, than we all just have to take our chances if we do so, knowing full well that the un-licensed pub owner could well be threatened and sued for our actions. Whether you then choose to raise that money for the licenses (for both ASCAP and BMI here in the States) for the owner or if they pay it incidentally is up to you and the owner...
Dirk has had his first preliminary discussion with a lawyer. We'll get back to you with what he tells us after a few exploratory searches...
I looked up Eamon Carr on Google and discovered that he's the drummer in Horslips (celtic rock). The titles that ASCAP's database attributes to him are also attributed to the other band members as co-authors. The titles are titles of cuts from their albums (or at least the few I checked are). On that basis, I'd assume that they are claiming ownership of the arrangement, which in the case of a rock band is pretty substantial.
Of course, it may take some work convincing ASCAP that what gets played in a session is not Horslips' arrangement, but it seems like you could do it if need be.
The little c WAS the responsibility of the author/copyright holder, not the performer. It's totally irrelevant today, and has been for 15 years.
Zina:"What I want is for everyone to know, bald-facedly and obviously, whether it's actually illegal for us to play out."
The answer is no, it is not illegal for us to play out.
It *is* illegal for the pub (a place of business for profit) to host a session regardless of the type of music (public domain or copyrighted) without obtaining a liscencing agreement with ASCAP/BMI (or international counterpart).
This issue is between the pub owner (business person) and BMI/ASCAP (and international counterparts) who represent artists. It's a cost of doing business no different than having to get a business liscence from your local extortionists (your local government). For that matter most municipalities require pubs to obtain a "cabaret" or PPA (place of public amusement) liscence if they are going to host live music.
If the pub owner doesn't want to pay the fee (or obtain the proper local liscences) that is their business decision. Then you have three choices. Pass the hat once a year to pay the fee or find some other place to play. Or just keep playing and don't worry about it. If the pub doesn't already have a royalty agreement with BMI/ASCAP chances are the fee will be relalively small because it clearly is not a major venue. By relatively small I mean a few hundred bucks. Probably less than the required local liscenses (business and PPA).
Once again we have confused 'copyright' and 'royalty'. The copyright laws have nothing to do with royalties and liscencing. Copyright laws establish legal authorship and that's it, nothing else. The Copyright Office (and the Patent Office) have nothing to do with business agreements.
Royalties and liscencing are a negotiated business agreement between artists and publishers. BMI/ASCAP are the representatives of artists and publishers when dealing with broadcast and live venues, since in these circumstances it is difficult to track actual sales. These are all 'voluntary' agreements. Sure, some of it may seem a bit coersive but they are all business agreements and not legal requirements. No one is legally required to join ASCAP and no one is legally required to become a pub owner. If one chooses to become a pub owner no one legally requires you to have music in your pub. (At this point you are legally required to stuff the pockets of your local extortionist by obtaining a business liscence.) If you make the business decision to have music, live or recorded, you are now legally required to obtain a PPA liscence and music liscencing agreement. That's business!! Pay the fee or don't pay the fee. It's a simple business decision.
Yes, but see, that's not Right (because ASCAP and BMI and their members don't own the right to the tunes that are truly traditional and those that are given to the public domain) and it doesn't make sense, and I'm willing to waste an amount of time on it to point that out to the powers that be, even if it's throwing pebbles at Samson. Just because it's the way it is doesn't mean that it's the way it should be, and if you just accept the way it is over the way it should be, the world quickly goes to hell, and you don't get to complain about it if you don't make the effort to protest.
Without people like you, nothing gets done, and without people like me, what does get done gets done without making sense.
Because that means it IS illegal for us to play out freely in the manner to which we are accustomed, in a wholly practical sense rather than the letter of the law. Reason is no good without Rhyme.
If you are okay with the status quo, Tusong, then you are, and you can go away now all comfy in knowing that you've made your point. Me, I'm not, and I'm comfy with that too.
It is laughable that you think you can point out to ASCAP something that they don't already know, as if they are not aware of public domain tunes being played at sessions. They (and their voluntary members) have no assurance that you or your session has not, does not and will not ever play any copyrighted tune at your session held at a place of business for profit.
Are you going to be the enforcer?? Next time somebody starts up Dusty Windowsills you'll butt in and say what??
"Oh no, stop, that's Johnny Harling's tune!!!" So somebody starts up the Donna Waltz.
Zina jumps in and says "Stop, stop, stop, that's Phil Cunningham's tune." House of Hamill??
"Stop!! That's Ed Reavy." Let's do MacArthur Road.
"Oh no, we can't. That's Dave Richardson." That's Right Too??
"Can't do it, that's Liz Carroll."
How's about Calliope House??
Zina quietly says "I guess that'll be OK , but I'm not sure........"
Everybody starts in and has a great old time playing a nice tune together. Except because Zina doesn't realize that the tune was written by and is copyrighted by Dave Richardson of the Boys of the Lough, who has a negotiated royalty agreement with his publisher and is a member of BMI (or ASCAP), the PUB OWNER IS NOW LIABLE!!!.
ASCAP knows that this will happen. I know it and you know it. The pub owner has to pay the fee.
What's the line about having the courage to try and change the things you can and the endurance to suffer the things you can't and the wisdom to be able to tell the difference.
I'm sure that there are all sorts of things in your local community that would make you feel much more 'comfy' if you put the effort in to change those situations, and I'll give you the benefit of the doubt and assume that you do. With all the really serious problems in this world having to do with right and wrong I'd be ashamed to put this issue very far up on the list.
Would you? Too bad for you then, because it has a lot to do with how the music is played, shared, and disseminated in our community -- and I'm not talking about ASCAP or BMI who know exactly what they're doing. If you like to have a bit of fun at the expense of those who tilt at windmills because it's right, then go ahead, but it makes you look a bit of an oik.
Well excuse me for disagreeing with you. At this point I'm not sure exactly what you're getting at. I can assure you that I was not attempting to have "a bit of fun at the expense of those who tilt at windmills", just expressing my opinion that your efforts are, as you admit , quixotic.
Perhaps I "look a bit of an oik' because I've expressed an opinion that doesn't agree with your world view. I don't feel like one and it won't stop me from expressing my opinions. I don't think that they are that nefarious. However, since this seems to have turned personal, I will wish you a Happy New Year.
Feel free to disagree with me, but don't go putting words in my mouth that I wouldn't put there. If by any chance I and anyone else who gets involved does manage to have something done about the fact that ASCAP and BMI are trying to corner the rights on something they have no right to, then everyone benefits from it, and someone will have stood up for whats right.
It may be quixotic and ridiculous to you, but certainly not laughable to me, so you can keep your ridicule to yourself.
One is, "Are BMI/ASCAP overreaching?" To which the answer is, sure. On traditional music, all that they would have rights to are specific arrangements by signatories.
But the second issue is one of practicality. Can you be sure that you will never have a situation in your session where someone plays a tune which is legitimately BMI/ASCAP controlled (by license)?
Now, if you are playing at a venue which has refused to sign up with BMI or ASCAP, on the grounds that no music to which they have rights is being played, if you play only traditional tunes (and don't play any arrangements lifted straight from someone's CD), you should be fine. (*)
However, if you do happen to play a modern composition to which BMI or ASCAP have been assigned the rights, and they happened to have someone there at the time, it is my understanding (with the caveat that I am not a laywer), that they could go after the venue or performers for willfull copyright infringement (since they had been notified). And willfull infringement of a registered copyright is subject to statutory damages (which are quite steep).
Regards,
--Dave
(*) Of course, the legal costs of fighting this would likely dwarf the license cost.
Zina: "don't go putting words in my mouth that I wouldn't put there".
Whoa!!, where did I do that?? Specifically.
I've reread my two main posts and I don't see anything at all personal in the first post. In the second post I described a scenario that included you as the 'enforcer' only because this thread is your thread and I was specifically trying to represent in an anecdote why ASCAP would find it difficult to accept that only public domain tunes would be played. I did say that it was 'laughable' to think you would point out something to ASCAP that they don't already know. I still think that this statement is true, they've been in this business for decades. However, if the use of the word 'laughable' offended you, I apologize.
However, your most recent posts seem belligerent and are not flattering to you. In you first post you said "Comments, ideas, and thoughts welcome". I misinterpreted that statement. I didn't realize that only comments, ideas, and thoughts that are in agreement with yours would be allowed. Otherwise one seems to risk being told to "go away now all comfy" and to be called names.
In another post you said we have to deal with this problem "Otherwise, it's back to houses and church basements for us all, eventually." Perhaps that statement isn't ridiculous or laughable, but it is alarmist and incorrect. (Are those words that I am allowed to use??) I know for a fact that all of the pub sessions in Chicago that are listed on this site pay the performance rights fee (many of them for decades) and are not losing any sleep over it. Why do they do it?? Because it's a good thing for them to do as business owners in their chosen field.
No, they do it because they have to, because it's not worth fighting the giants of BMI and ASCAP, not because it's a *good* thing -- just a *necessary* one in order to get through the day in peace, even though it's not right.
Well, Will, I can start it up on tipping bovines or roos, we've had lots of practise at this point at both. I just don't know or care enough about football to go for very long on it...
It depends. *IF* the venue NEVER plays anything covered by BMI/ASCAP, and they pay, then yes, they are doing so because they don't want to be harassed.
If, however, they play even one covered tune (leaving aside arrangements, I'm talking about one case where an actual modern tune is under BMI or ASCAP licensing), the actual statutory damages are likely to be considerably more than the licensing fee would be.
Heh. Dave -- in the case of most of the club and pub owners I know (my husband is one), they paid because they ARE being harassed, as well as not wanting to be harassed. My husband tried fighting it, and almost every owner I know of tried fighting it, and eventually realized that ASCAP and BMI just have too much money and lawyers to throw at you; it was definitely cheaper to pay than to litigate, faster to just give in, and precedent is such that you'd lose if you fought anyway, no matter how right you were.
I used to work for lawyers, my husband has owned and worked in many clubs and cabarets, and I've many family ties in the government and service sectors. Believe me, guys, I'm not going into this blinded by Pollyanna possibilities.
Oh, and hey, my husband and I were laughing that possibly the "easiest" way to take care of the whole mess is to start up a PRO just for Irish traditional musicians and composers, just like BMI and SESAC did...of course, then you'd have quite another court battle on your hands...
Sure. But assume for the sake of argument you don't pay BMI or ASCAP, because all the tunes have been vetted as traditional.
At the end of a session, someone says, "Hey, it's Bob's birthday", and someone (for whatever reason, be it whimsey or too much to drink) toddles off "Happy Birthday".
If an observer happens to be in at the time, that would be willful infringement. It's the odds of a screwup that would make me say it seems far more practical to simply pay to get into the safe harbor.
Yup, and that's where they get you by the short hairs. Because you know they'll now have their "detectives" in there at every opportunity, waiting for someone to sing Happy Birthday or whatever. Ex-boyfriend of a friend of mine used to work for ASCAP as an enforcer or whatever they call them. After six months, he quit, because he just couldn't do it anymore, for his own sanity and as a musician himself...
It'd be nice to have a vetted list of guaranteed traditional tunes (say, for busking, if you are worried about enforcement there for some reason), but I can't see it being reasonable for a business owner to basically put their livelihood on the line on the basis of "if none of the people who visit this session ever screw up, it'll just be aggravation with BMI, if they do screw up, I close".
Of course, it's academic. But sometimes you have to try even when you know the task is impossible. (Besides, I was asked to try by our pub owners, and I said I would, so I will.) And it's important to try for things that are right. Imagine a world where we only went for convenience; it'd be awful.
While BMI may use strongarmed tactics, I don't think they are necessarily wrong.
While it would be nice if BMI recognized that a venue playing largely traditional tunes would use a vanishingly small percentage of the BMI catalog (or cross-licensed catalogs), and therefore reduce the rates accordingly, I think it is reasonable to say that barring a case of an owner/singer/songwriter playing only his or her own work, any venue that has live music is eventually going to feature someone playing a BMI (or cross-licensed) piece, even if accidentally.
Well, use a political or other organizational entitity in place of BMI (use whichever one you want), and say that over again using that same sentence. "While *use your own word here* may use strongarmed tactics, I don't think they are necessarily wrong."
Sometimes, it's the strongarmed tactics that *make* them wrong.
For instance, the US Government didn't agree with, say, Microsoft's strongarmed tactics, and indeed told them that they were actually quite wrong, and yet all MS is trying to do is 1) make money for their work, and 2) make sure all their products worked well together. (They've certainly succeeded at the former, and the jury is STILL out on the latter.)
In fact, many people and organizations, including the US Government, have tried to tell ASCAP and BMI that they are, indeed, wrong, but the PROs have managed to run over them anyway because, and this is important, the alternative appears to be worse.
But that still doesn't mean that they are *right*.
I am assuming that we are using strongarmed tactics as a colloquial term (much like "playing hardball"), as opposed to a more literal "nice bar, pity if someone should blow it up" sense.
Saying, "if you don't sign, we will have people watching you and if you use materials we manage without a proper license, we will go after you to the fullest extent of the law", while colloquially "strongarm", isn't in the same category.
Nor are we, to the best of my knowledge, talking about BMI setting up BMI Catering, and demanding that you order snack foods from them if you wanted to be able to legally play music.
So, if they are being extremely rigorous in the enforcement of their legal rights, while tough tactics, they aren't reprehensible. If they are making frivolous lawsuits or sending thugs with crowbars, then I agree, they have crossed over the line (and in the latter case, would have crossed over a criminal line).
Well, technically we have forever, Dave, but suffice to say that I would assume that our definitions are probably different enough that "frivolous", "reprehensible" and "tough tactics" would take us far longer to define than I personally have patience for at the moment...
I'll let the lawyers tell us whether we can duke it out with the ASCAP and BMI reps under the legal radar, and continue checking into and doing what I can without the costs of legal proceedings, which has been my plan all along, after all.
I think you will find that BMI's stance will be if the name of the composer or arranger is lost to the winds of time it cannot be researched. And if it cannot be researched and proved to be clear, it will have to be placed in protected limbo (escrow) until such time as it can be proved to be clear. But they will be quite happy to accept your money and let you play.
The biggest argument I've ever had is with a professional songwriter buddy of my wifes (three # 1 songs with Garth Brooks). It was over this very subject. They are rabid about protecting everything whether they have a right to or not. If you call attention to sessions only bad things are going to happen. The tune may be clear, but the arrangement has a long roll on the 3rd bar of the "A" part, and it can't be played because Irish Joe Smith recorded it that way on his record back in 1968. So you have to treble it, or simply not have a note in that spot.
Oh, it's been 10 years, and Jenny still hasn't spoken to me.
Thanks, Ran
The biggest problem I see here with all the arguments supporting BMI stance that every live venue should pay is simply that it sets up a presumption of guilt which in this country isn't legal. You, including businesses and corporations which have personal rights too (although I personally have issues with this concept), are presumed innocent UNTIL proven guilty.
BMI is presuming guilt right off, and their techniques verge on extortion - pay or we'll sue you so bad you're out of business. Simply, this whole issue violates constitution rights. If a serious lawyer were to look at this through a RICO Act perspective...well, it fits the profile for a RICO lawsuit. This site is worth a read:
My understanding (and please correct me if I'm wrong) is that it's "pay, or we'll watch you like a hawk and if you play something you don't have the right to play, we'll sue you" (and since the statutory penalties for willful copyright infringement are so high, it is effectively "sue you out of business").
from what I've heard from others, it's pretty much "we'll sue you and break you" kind of talk, and although I have not read the copywrite laws I'm guessing the penalties (and anyone feel fee to correct me) are to be decided by a jury of your peers which is the legal standard for all court procedeedings (unless you choose a trial by judge alone and decline your constitutional right to a jury by peers).
Really, there is a strong parallel between the mafia saying "pay us 'insurance money' so noboby breaks into your store" and "pay us a licensing fee even though you play no copywrited materials or we'll sue you and run you out of business". Further parallels - BMI is a large organized goup with a plan to control the business practices of business owners.
Also, I really go back to the onus is on BMI to prove that a song is copywrite infringement and not on the business playing the music. There is no law against live music, public domain music is legal (otherwise we wouldn't have a legal definition of it), and BMI should have to prove that the version of the Mason's Apron I play infringes on whoevers rendition and not the other way around. Again, I, and any pub owners, are legally innocent until proven guilty, and the burden of such proof lies with the accuser. Also, even if I play one measure as per a copywritten piece, that does not make copywrite infringement, I would have to play an amount the same that crosses that mythical/legal standard - again - a jury would have to say if that was done not BMI.
Statutory penalties for willful copyright infringement are, if I recall correctly, $20,000 US per occurence. As they are set by statute, they are not (to my knowledge) determined by the jury. The jury would determine whether or not the infringement occurred. Of course just the legal costs of fighting a suit would take out most venues.
So if BMI sues *without* evidence that a specific song that they have rights to was played, I would agree that they were being abusive and that that needs to be stopped. If they have an agent in there, and spot a single tune (or more than one) that is legitimately (i.e. a modern composition) under license, then I cannot say that they are being unreasonable.
I understand that people are going to differ on how much enforcement of copyright is legitimate; and I recognize that, as someone whose work (non-musical, the one tune I wrote is free to use by anyone) is stolen on a daily basis, that this is one of my "hot buttons" and that I'm going to fall into the far end of enforcement here.
But since I do think that almost any venue that has live music will eventually (even if accidentally) play a modern composition that is under BMI or ASCAP licensing, it does make sense (and is reasonable) to pay a licensing fee.
The biggest problem people have had in the past with the various legal actions against ASCAP and BMI is that both organizations are 1) non-profit, and 2) are intended and indeed do in fact act as watchdogs and cashiers for a previously unrepresented minority's (ie: performers and composers, albeit the top percentage that actually get sampled airplay--the rest of the country's pro musicians get nothing at all). This, coupled with the fact that they have comparatively unlimited funds and lawyers who have historically found every loophole previously unimagined in the books, has made suits extremely difficult. Even suits that have been successful have later been overturned upon appeal.
Still, it's not the first time that a good idea taken to extreme proportion has become a bad idea for yet another portion of the community it was intended to protect. There has to be a reasonable solution. Personally, I doubt whether it will be in the courts that that solution will be found, but I'll contact Mr. Grell anyway to see what he thinks.
(The RICO Act, covering racketeering charges and often informally referred to as "The Mafia Act", is the one that Richard Hayes Phillips refers to in his letter to The Honorable John McHugh at http://users.westelcom.com/minstrel/mchugh.htm. Reading the entire "BMI Appendix" at that website is fairly interesting. Whether the opinion of the Assistant General Counsel to the Register of Copyright--and therefore the Library of Congress--would stand up to scrutiny in court opposite BMI/ASCAP lawyers is an interesting point, especially in a RICO suit. Phillips believes that "...the point is so obvious
that it has never been litigated, which makes this a landmark decision." I'm not so sure that it is a landmark *decision* per se, since no one legally did any deciding, but it's definitely something worth considering.)
Anybody else remember Chief O'Neill's description of an old muso who obligingly played his tunes into the horn of one of the new-fangled phonographs? When they played his tunes back at him, he started hitting the machine with his cane, thinking it was a work of the devil? Whaddaya know, the old guy was right! LOL
thanks for the info. on the fine per occurrence. I agree the biggest issue in defending anything along this lines is going to be the legal fees.
Also, as I said much earlier on, I'm not against fees/royalties for legitimate copywrite material at all. And I also agree that many/most pubs already pay licensing fees so that part is moot, but I do think small venue oweners who might have an open mike night for original works or traditional music might be scared off by the BMI representatives.
I may just be a bit like Zina - I don't like things being done that are wrong even if they were initially started for good purposes. Also, power corrupts, BMI/ASCAP are now very powerful organizations, and it just seems like more and more they are crossing the line.
Let us assume, for the sake of argument, that we have a new PRO.
TRAD, which exists only to note tunes which are verified to be out of copyright, or which the author has assigned to TRAD for the sole purpose of assuring that no fees are required to play it.
Let us further assume that BMI and ASCAP have agreed, in writing, that they have no claim over TRAD listed tunes.
Now we have our TRAD signatory pub, with its weekly session. It doesn't play pre-recorded music, so it doesn't have a BMI license.
With all this, IF there happens to be a BMI enforcer in the room, and someone plays a Liz Carroll original tune during the session (since those are listed with BMI, as far as I can tell), THEN the venue is *still* liable for statutory damages.
This is why I can't see it ever being safe for any public venue that plays live music NOT to have a performance license from BMI and ASCAP.
For the love of god, Dave, it wasn't for the sake of argument, it was a joke -- BMI and ASCAP would fight like bloody cats and dogs before they'd allow it, it'd never get off the ground! Why the heck are you so set on arguing that BMI and ASCAP fees should be paid regardless of whether it's right or not, anyway? It will be what happens, but that doesn't make it right, can you admit that? What the heck is actually going on here?
If you never play BMI covered tunes, then it ISN'T right that they demand a license.
I just have trouble picturing a case where you can guarantee that BMI tunes will never be played.
I fully support an attempt to try to negotiate a lower fee schedule (on the grounds that say 90% or 95% of the music is public domain), but that is a separate matter from whether or not a license should be purchased at all.
Yes, I'd say being covered in case your patrons decide to sing Happy Birthday to someone in your restaurant would be good. $600 a year is all it takes!
Wouldn't a simple signed agreement stating the venue does not allow for playing copywrite protected material signed by the performers agreeing to abide by such keep the venue from being in violation? Naturally, it would need to state any performance of a licensed piece by a volunteer would be the responsibility of that performer? Would BMI sue an individual who they know they'd never get a penny from?
Where does the first amendment fit into all of this? If I extemporaneously pull my flute out at a bar (everyone stop smirking now), play a tune like Leon's Waltz, am I in violation of copywrite infringement? The bar owner has nothing to do with it, I'm not charging anything, so it seems like I should have the right to play that tune as a freedom of expression. Hell, I own it on CD, so it's not like the performer wasn't paid in the first place. AND, it's not illegal for me to play a copywritten piece for my own personal amusement or that of my friends as long as it is not a public performance.
I think there are a lot of moral issues modern society expects us to ignore, and it will only get worse if people don't stand up and make a little fuss now and then.
No, that's just the BMI side, Dave, then there's the ASCAP fee to be paid as well. For a small club owner, struggling to make payroll on little to no margin, that's a ton of money. Are you offering to pay it for them, though? ;)
Eric, nope, none of that works because the performer has nothing to do with it -- it's being done on the premises of a business that is making or has the potential for making profit, and that's who needs the license. This is why you'll see pub owners rushing out and apologetically but urgently making anyone making any kind of music stop.
Usually you won't actually see anyone getting in trouble for "Happy Birthday", but it has happened (and in fact would probably be guaranteed to happen to a bar owner who insists on fighting BMI or ASCAP), just like when ASCAP went after the Girl Scouts for singing round the campfire, their most famous PR fiasco to date.
Oh...and first amendment wise, take a look at the letter to Congressman McHugh again -- but the reason it's never enforced is the Law of Convenience. The Law of Convenience comes into effect when the rights of a minority are being affected by the rights of the majority being enforced. It generally only stops holding sway when the minority can find a way to beat the majority and often involves a sacrificial lamb or two. Volunteers? Anybody? *grin*
If the venue could get legal contracts from the performers indemnifying it, I suspect the venue would be fine. The performers would potentially be on the hook for a lot of money (which might make it harder to get people to play).
As far as the First Ammendment, it doesn't fit into it pretty much at all. You have every right to express yourself. You don't have a right to express yourself with someone elses intellectual property. For example, you cannot scan a book and email it to all of your friends because it expresses something you agree with, and defend yourself with "but I wasn't making any money on it" or "it was freedom of the press".
There is no right at all to use someone elses copywritten material. If someone writes a tune, and declares that any performance of it has a $5,000 performance fee, your only legal options are to pay it, or not play it publically. If you are quite young, and from a long-lived family, and Congress doesn't decide to extend copyright again, you *might* live long enough for it to pass into the public domain, but that's another matter.
The problem here is, BMI has such a large catalog of materials, that eventually, someone WILL eventually accidentally play a covered tune. And since you have no right to do so (even by accident) as a public performance, they can go after you for the statutory penalty.
Assume the pub hosts 30 sessions a year (a little more often than every other week)...
That comes to thereabouts of $20 per session.
If my local sessions needed to pass a jar to meet the BMI/ASCAP fees, sure I'd kick in. If it were my only session, and no one else could contribute, I'd likely pay the whole thing.
The Richard Hayes Phillips case is very much the exception, and I agree fully that BMI was in the wrong there. But that is vanishingly rare, and it isn't entirely applicable here (since you cannot guarantee that no one in a session will kick into a covered tune).
Dave, I'm in complete agreement with you on this issue.
Many of the Sessioneers seem to paint this issue as a moral issue of right and wrong. I approach it as a practical issue of good or bad choices, that is, beneficial or counter-productive. No pub owner makes a business decision that he believes will be bad for his business. Every business person makes decisions based on the belief that the choice will be good for business, that is, productive and revenue enhancing. That's what they are in business for.
Sure, every pub owner complains about paying ASCAP just like they complain about having to sign an exclusive deal with their beer distributor. "Hey, buddy, if you want to buy draft Bud from us we gotta be sure you ain't gonna be selling none o' dat Miller Lite draft." They complain about the price of the beer. They complain about having to pay the business liscence fee, property taxes, PPA (cabaret) liscence, having to upgrade kitchen equipment and the building, having to pay to get the mandated improvements made to the sidewalk in front of the building!! If the TV breaks down they have to buy a new one. Nobody likes to spend money but ultimately the business decision is made that it will be money well spent. If you don't want to be confronted with these choices you can close your doors and go get a job flipping burgers.
I'm actually surprised that several days into this thread no-one has questioned the pub owner's complicity in this *travesty*. I played at a session for many years in a restaurant that required the session members to come up with the fee every year. We were *lucky* enough to have 20 or 30 people to tap for the $350 so it only cost us $12 a year. But that place was packed, standing room only, every Tues from 5:30 to 10:30 every week. Any other day of the week they were lucky to get the place 1/2 full. They made enough money on any one Tues. to pay that fee for the year. It made my skin crawl every year, not because of ASCAP, but because of the restaurant. They loved having us there filling their coffers every Tues. nite. "Free entertainment!! What a deal. In fact they're actually willing to pay to play!!??"
No, thanks!! Pub owners approaching the musicians when they are contacted by ASCAP/BMI have been painted here as innocent bystanders. Not in my opinion.
To take Eric's point, I guess once you play a piece for the amusement of your friends then when does it go over a threshold and become entertainment?
In the UK we are faced with a Public Entertainment Licence which basically makes venues have to have a licence for musical performance even when it's just people playing in sessions. I personally don't think that playing in a session is for public entertainment. If people listen, that's great, but primarily we play music to share stuff, don't we? To me it's more like a conversation than a performance. If it's copyright stuff, then does it matter? Applying this principle to speech, are we going to have people listening in to conversations to check in case someone quotes a line from a TV show / movie etc?
Maybe I shouldn't have suggested that, even jokingly! You can be sure there's some bureaucrat, somewhere, who's just waiting for more ways of screwing money out of people.
In the United States, I suspect the distinction is whether or not the music is being played in a "Place of Public Accommodation". In fact, the BMI web page specifically refers to "public performance rights", which would exclude private residences, and so forth.
Moreover, given previous discussions on how a good session can help business at a pub, it is, I think, a bit disingenous to claim that a session is just a private conversation. For that matter, you are unlikely to see a bar advertising that it has a "Private Conversation, every Sunday at 4pm".
That's correct, and as a matter of fact, it's probable that we'll continue to play that session, but in my living room or somebody else's, which is just fine by me, whether the beer and food is free or not (which has been the case at our local up to now) -- that's not really the issue for me, frankly, even if it is for somebody else. Believe me, I've already thought about whether we're actually a priority for the owners -- if we were, wouldn't they have found the money somehow?
But I want to know if the stuff we play is ours to play or not, whether the music belongs to us or to someone else; that's the larger issue for me in all this. The nature of this stuff is that we pass the music on to each other by ear, with stories attached, with no strings other than the ones connecting us to each other. The nature of the stuff is that there's a history to it, that I can sit down and play the Maid Behind the Bar in a session just about anywhere, and just about anyone will know it and play along. That is to me the real issue of whether ASCAP or BMI can force a business owner to only allow me play my music in their establishment if they get to pay someone else for my music, even if it happens to be the same tune. (And we all know that the original composer of our kind of music isn't going to see anything from it anyway, given the whole sampling thing.)
We talk a lot about making the music "ours" -- well, if it isn't, then why bother making it? Why do you allow other musos to play your tunes without paying you for it?
I feel that my version of Lads of Laois is mine, even though we do an "homage" set to James Kelly of one of his sets -- I play them the way *I* play them, not the way he does (and not half as well, of course), but I acknowledge how much I've learned from him by playing a set of his. I don't know who wrote Lads or the Dwyer's in the middle or The Heathery Cruach, but I'm fairly sure I play the tune differently from them anyway, however they originally wrote it.
However, to ASCAP and BMI, I suspect I would be in direct violation of their licensing process if I play it in a place that might make money while I play it, because I play them together the same way Mr. Kelly did on a recording. I don't feel that's right, and if you do, that's fine, but it's also fine if I don't and decide to fight for my right to play it the way I see fit, whether you think that's foolish or whiney or what.
Mark, The pub owner hosts the session to attract customers (as well as other players, especially if there is no free drinks policy). If the pub owner determines that the session is actually losing business and costing him/her money, you'll be booted right out the door.
Amazingly you ask, "If it's copyright stuff, then does it matter?". It does to the owners of the copyrights, and that isn't ASCAP/BMI. The owners are artists, authors and composers.
It would be impossible to have a website such as this one devoted to the discussion of music whose membership isn't filled with dreamers, and rightly so. That's a good thing.
Let's assume that *we* start a PRO for public domain music and that ASCAP/BMI actually partner up, that is, recognize the organization as legitimate. Under that scenario (which has been proposed by other members) I have two questions.
1... Who is going to run it? There are no copyrights, no properties, and no collectible fees. No $$$. Will you demand a fee just to support the organization??!! It seems we'll end up right back where we started. Who is going to pay for the inevitable new computer? Who is going to deal with the piles of email and snail mail? Who is going to be the final authority, and ultimately accountible, for determining whether or not a tune is in the public domain? And who will deal with (and pay for) legal challenges?
2...If I show up as a newcomer or visitor at your pub session which has no performing rights agreement with ASCAP/BMI and start playing Dusty Windowsills or the Donna Waltz, what will you do? Will I be told to stop? Will I have to submit a list of my tunes to be approved before I can sit in?? What if there is a tune on my list that no-one in the room is familiar with? Will you run to the computer to check the database before I can play? What if I say I wrote them?? What if the tunes are mis-titled?? What if (true) I don't know the names of all my tunes?
It all seems counter-productive. Pay the fee. Get thee to a session. Learn more tunes.
Zina, I don't think you are foolish or whiney and I have respect for you putting as much effort into your research as you have. However you seem to be concerned about things that are not 'real world', things that may go bump in the night.
Zina.."However, to ASCAP and BMI, I suspect I would be in direct violation of their licensing process if I play it in a place that might make money while I play it, because I play them together the same way Mr. Kelly did on a recording."
You don't have any real world basis to suspect this. Firstly, *you* are not "in direct violation" of anything, the pub owner is.
Any actual copyright infringement suit would have to be initiated by James Kelly or his recording label, and would have little or nothing to do with ASCAP.
A performance rights dispute would be between the pub owner and ASCAP, and would have little or nothing to do with you since ASCAP has, by legal precedent, a recognized policy with the entertainment and hospitality industry that if a venue has live entertainment they are required to have a liscencing agreement. It wouldn't matter what you played, Happy Birthday, Stairway to Heaven, Maid Behind the Bar or Beethoven's Fifth.
I fully agree you can't scan a book and send it to someone, but are you saying, and help me out here, I'm not an expert on intellectual property, that I can't recite a Vic Contowski poem (one of my poetry instructors in college - he's published and it's copywrite material) on my own --- even if I own the book? I couldn't read it aloud to my friends and say - wow, that's art?
I'm not trying to be a pain here, but I see playing someone elses tune, in a non-business manner, as the same. I play stuff for my own enjoyment, or at or local slow session which is in the basement of a church with no audience or profit, for fun and it's sometimes stuff I picked-up off of CDs. Is that illegal? I can tell you I'll sit here and sing After Midnight or Cocaine to my hearts content --- my uncle wouldn't give a darn and he wrote those songs. Now if I tried to record it on my own, or perform it in a public venue, I'd probably cross the line with him, but for my own enjoyment saying you can't play something like that is nuts and completely unenforceable.
It would be my playing of what ASCAP or BMI would consider what they can license that would get the owner fined and therefore out of business in the case of most small establishments. The pub owner is the direct violator, yes, but if I want to play under those constraints, than it's me as the performer who has the burden of proof, not the owner, even if it's the owner who would take/is taking the consequences, not me..
Watching more and more sessions fall prey to this worldwide is hardly "bump in the night" and while I may be an idealist (and therefore often a pessimist) I am rarely a dreamer.
Sure, if the owners truly wanted to have us, they'd find the couple thousand it would take every year. And it's possible we could figure out some way to get BMI and ASCAP to figure out some reduced fee schedule (a la the $1.00 annual payment for the girl scout camps and such so they can avoid setting a precedent for the big money items), but it's still wrong to require a license on traditional music that isn't theirs to license, whether it's legal or not.
Here's my question - does BMI/ASCAP have separate sampling bases for folk/rock/jazz/easy-listening/country/etc and pubs/radios/tv's/highland games/fiddling contests (oh dear, I hope I haven't given BMI/ASCAP any more ideas) so that the composers we actually play stand a snowball's chance of actually getting the royalties they deserve? And then, on the difference between copyright and performance fees, if we play a version right out of O'Neill's Music of Ireland or Fiddler's Fake Book (gasp), and someone doesn't register that version with BMI/ASCAP we don't owe performance fees, right? But have we violated Oak Publications copyright? Or have we only violated their print copyright if we've physically copied their music (including photocopies, scans, abc's?)? Have we violated their print copyright if we've learned their version by ear from someone who learned it from their book? I can, in fact, see that if a pub let's a session meet in order to generate business (either from the musicians buying food and drink, others coming to listen, or to help fill an otherwise slow night with either) then the fees are due for all of the reasons folks have mentioned. But I've run into BMI/ASCAP in other than business venues - and if a group of ceilidh dancers have bought a CD to dance to in a church basement once a week why should they have to pay an additional fee every time they use it (and most of those dances are "open to the public" and often listed in the "what's to do" section of the newspaper)? But I've seen BMI insist, so I'm not giving them ideas there -
Reading poetry to your friends would be (as I understand the law) fine.
Standing up on Poetry Night at a coffee shop and reading it aloud without permission would be (I think, again, I am not a lawyer) a violation of intellectual property.
The key here, I think, is twofold. One is the notion of where you are performing, and the other is how. For example (those who disdain all electronic instruments can wince now), if you were at the local pub, and playing on the bodyless violin, wind synthesizer, and say, a Roland electronic hand drum, and they were plugged into a mixer board that only the performers had headphones plugged into, it might qualify as performance art, but it would, I think, be a stretch to say that the tune was being performed for an audience. By the same token, if you are sitting in someone's living room, playing for your own pleasure, then it is clearly not a public performance.
But, unless you want to get into tortured definitions of "what is is", I don't think you can make a plausible case that a regular session in a pub is NOT a public performance under the law.
If you want a test case to go after BMI/ASCAP, the Richard Hayes Phillips would seem to be ideal. A session would not be, since all it would take is one mistake of playing a modern composition registered with BMI for them to be able to stand up in court and say "all of their claims about our trying to charge them for music we have no right to are a lie, here is a case where they clearly and willfully played a composition in our catalog" and you haven't got a leg to stand on.
This definition of "public performance" came from the ASCAP site:
A public performance is one that occurs "in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."
Oh, and here is exception that might help slow- and teaching- sessions (again, from the ASCAP FAQ):
Do I need permission to perform music as part of a presentation in class or at a training seminar?
If the performance is part of face to face teaching activity at a non-profit educational institution, permission is not required. Permission is required when music is used as part of training seminars, conventions, or other commercial or business presentations.
thanks for the info., but it now raises questions about busking.
I wonder what BMI/ASCAP would feel about that since it's done in public for profit, but it's not done in a legal established business. Would they charge a single person a substantial fee? What if the player said they simply don't know the names of the tunes they're playing (not meant in jest, I know lots of tunes that I don't know the proper name)? Would we actually expect any BMI/ASCAP rep. to be willing to hunt down a busker?
Akin to the above, I often practice, outside in a public city park, while on break at work. I'm not busking - just playing for myself. Sometimes people come and listen...
All the above just shows how insidious and impossible it is to police something you can learn without knowing the name of the musician who played it or the composer. Say I hear a person humming a tune to themselve at work, I like it, go home and work it out on flute, and then I play it...I could be violating the law without even knowing it.
Essentially, to me at least, the path that BMI and ASCAP represent leads to a cessation of all music playing unless you've composed your own piece or can afford, as an individual, to pay a large licensing fee...it just gets silly.
And I cannot find anything on the BMI or ASCAP pages where there is even a license form for buskers.
Practicing in a park versus busking... that gets even murkier.
One source that might have information (again, courtesy of the ASCAP page) is:
VOLUNTEER LAWYERS FOR THE ARTS HEADQUARTERS:
1 East 53rd Street, 6th Floor
New York, NY 10022
Tel: (212) 319-2787 / Fax: (212) 223-4415
(212) 319-2910 Hotline
Provides free legal representation and comprehensive legal education to the arts community. Services include representation and counseling on copyright, contract, labor, real estate, nonprofit corporations, and tax exemption. Call this organization for an appropriate local contact in the US.
For that matter, I think I'll ask my attorney, and see what his opinion is. (*)
Regards,
--Dave
(*) Not nearly as spendy as it sounds. Legal Services Plan gives unlimited phone consultations in the US, for $12/month.
So I started digging into Title 17 (again, I am not a lawyer), which is the United States Federal Copyright law..
The definition from the ASCAP page listed above is the definition of public performance from Title 17.
Under 106(4) of Title 17, the copyright owner has exclusive right to control public performance. There is no right to control private performance, so anything you do out of the public eye is, as near as I can tell, entirely legal.
For those who care to inquire on their own, the link I used was:
Once again I urge reason and common sense. ASCAP/BMI do not require individual performance rights fees from buskers even though I'm sure that they would feel they are entitled to it. The reason is simple. It's not worth their time. Say you make $100 in a day's busking, they're not going to track you down for $2. How about if you busk for just an hour or two, maybe they'll come after you for a quarter or 50c???? It's not the amount of money per se but the fact that it would cost them so much to keep track of it. They really don't even know that you are there and don't really care. Once again you are in far more jeopardy from the local officials who may very well require a much more substantial street vendor's liscence, at least that's the way it is here in Chicago. Busking is illegal here unless you buy a liscence annually, and there are only a limited number of liscences available. If you are caught busking without a liscence you will usually just be told to "move on" but further infractions will get you a ticket with a large fine and possiblly a court date.
I doubt if BMI/ASCAP would actually *stop* a dance from occuring in a church basement. Not only are church and school performances (if they are church or school activities, not just rented facilities) usually exempt but how would they even know about it ahead of time?? More likely what happened is some sweet, well-intentioned, but ultimately misinformed person claimed that ASCAP/BMI wouldn't allow it without a fee and the thing was shut down. I have seen that happen and the well meaning, but ultimately mis-informed, person's fear-mongering and alarmism was the actual reason for the cancellation, not ASCAP/BMI.
For what it's worth, as far as I have been able to determine, playing a tune which is under copyright while busking is technically a violation (since the copyright owner has the exclusive right to public performances, and you don't have a license), but no one seems to really care. I cannot find a street performer license listed on either the BMI or ASCAP web pages.
As far as they are concerned, they only license venues, and there is no liability on the part of the performer at all. They have no interest in either going after or licensing street musicians, and as far as they are concerned (at least in this phone call) playing on the street is fine.
For what it's worth, I doubt very much it's "well meaning, but ultimately mis-informed, person's fear-mongering and alarmism" in that case. In most cases it has more to do with someone giving BMI/ASCAP notification as a spotter (a flyer or a poster is the usual way -- I can think of at least four occurences last year when the BMI or ASCAP rep actually read the poster or flyer to the organizer who was about to get shut down over the phone, and in fact that's how our session was shut down), as there's a bit of pay for that sort of thing.
Personally, I don't think I'm fear-mongering or alarmist. I'm reactionary. BMI & ASCAP have both said that they care and that they want to find out, and recently they've started cracking down on ever smaller and more informal venues. That's why the Girl Scouts now pay $1 a year to use ASCAP songs around the campfire at summer camps -- and that minimal, symbolic fee was only because of public pressure, ASCAP was originally determined to charge licensing fees for each and every camp. It wasn't til the Washington Post picked up the story that they started backing off, especially when their threat of suing the Girl Scouts and the camps got around.
Here's IMRO's take on Irish traditional music copyright and arrangement (from their website):
"In the case of Irish traditional music, no copyright issues arise when the music performed is part of a body of work that has been passed down from the time that would clearly indicate that any responsible copyright term has expired, and usually the origins of the music are anonymous. Variation and ornamentation tend to be the distinguishing features of the contemporary performance of this music. Such embellishments, however, do not create a new copyright arrangement because they exist only in the performance and not, as previously indicated, in any tangible form, such as writing or a recording. In such situations, it is presumed that artistic considerations only arise if the embellishments referred to are repeated by a third party. However, should recordings be made of such performances a right is recognised in those versions of the performance. "
I know of one case where a "well-intentioned, misinformed" person sent a video of her students' highschool performance of a musical to the maestro as a way of saying thanks and sharing the glow of amateur pride, and the maestro's watchdog promptly slapped the school with the licsening fee and a hefty fine. Although no admission fee was charged for the one-off performance, it was advertised, and so was a "public performance."
People who earn their keep from their own intellectual property can rightly get persnickity about use of their material. But mercenaries like BMI and ASCAP predictably fall into the trap of pursuing every penny, sometimes past the point where the artists themselves might choose to look the other way (out of deference to a good cause, or with the realization that a little word-of-mouth publicity is worth more than the "lost" income).
Maybe I'm being cynical, but I wonder who's watching the watchdogs? Say you take a bunch of kids to Pizza Hurl for a birthday party. The restaurant has music playing over a sound system, so we assume they've paid their BMI fee. And then the kids launch into "Happy Birthday" as the cake is brought to the table. This tune isn't on the canned music playlist, but the pizza joint is popular among the sub-adult crowd, so it hosts maybe 6 birthday parties a week. Who keeps track of how many times the song is "performed" and makes sure the composer's heirs get their due? Or does BMI just sweep that under the carpet?
...we generally don't flyer about our session, since it's a closed one (the place is too small to risk more than four or five musicians, or there's no place for patrons to eat!). The flyer that got us shut down was one advertising the fact that our pub was giving 10% of all profits that night to the fund for the victims of the Jamestown Overland Fire, so we thought we'd put out a tip jar for the same... :-|
BMI again...
BMI again...
Okay, so here we go. I just talked to BMI New York's research department, who referred me on to their General Licensing department in Nashville.
Apparently, BMI's stance (and I will be clarifying this with Linda Mitchell, this area's BMI licensing rep) is that ANY public performance in a business that makes any kind of income (regardless of whether that income comes from the performance of that music or not) during the performance of that music must have a license attached to it, whether BMI's members and benefitors have written that music or not. (I have not been able to ascertain whether BMI considers the Irish music session to be a performance or not. I hope to have this clarified soon.)
This stance would apparently be in direct conflict with the letter written by Marilyn Kretsinger, Assistant General Counsel to the Register of Copyright in her letter of November 27, 2001 (which the text therein can be found at http://users.westelcom.com/minstrel/kretsinger.htm), I will be trying to get an official representative of BMI to send me a written explanation of their stance on the traditional Irish session so that I have something to work with. I will be contacting the Register of Copyright to see if there are any changes to their stance since the time of that letter.
However, Ms. Kretsinger's letter does put the burden of proof of public domain onto the owner of the establishment (and therefore the performer). This would seem to imply on first glance that musos would need to have a set list of all the tunes that they have researched and discovered to be within the public domain. They would then be unable to "perform" any tunes not on that set list until the tunes have been researched and found to be in the public domain (or "PD" as the nice lady in Research called it). This would put something of a crimp into the natural ebb and flow of your normal session, but as more tunes were researched and that research shared by musos, it would get easier to simply provide a huge list of tunes that would be in the public domain and thus available to be played.
My thought is that since there are many tunes whose composers have been lost in the mists of time, the Register of Copyright or similar governmental entity must have some way of dealing with these things. That'll be another item on the "to-do" list -- finding out what agency deals with that and such.
The mind boggles...I just had this dizzying vision of an organization that exists only to prove whether a tune is in the public domain or still within copyright and shouldn't be performed without payment -- and a way for composers of tunes to assign the tune to the public domain easily...come to think of it, I have a non-profit organization all set up for that already....wonder whether that would be a good use for it?
Anyway, my thought is that we need to get an official statement from BMI, ASCAP and other performance right organizations in order to keep them from being able to use these rather extortionistic tactics on our pub owners (my theory is that this is why we're having a terrible time getting such a thing out of them). Once we have that, we have something that musos can give to their pub owners to give to the reps who go further than BMI's actual charter and mission, AND if we don't agree with the definition as provided, we can use it to force a change through legal channels.
Comments, ideas, and thoughts welcome, the more brains involved, the better.
Zina
# Posted on December 29th 2003 by Zina Lee
Re: BMI again...
"...ANY public performance in a business that makes any kind of income (regardless of whether that income comes from the performance of that music or not) during the performance of that music must have a license attached to it..."
Does this take into account whether it is a paid performance or not?
Morgana
# Posted on December 29th 2003 by Ptollemy
Re: BMI again...
Apparently it does not. If the owner is making ANY kind of income from or during a performance of ANY music, so far the spoken definition given to me by the lady in research is that there must be a license. This seems excessive to me, and worth challenging.
In other news, Marilyn Kretsinger is still the Assistant General Counsel to the Register of Copyright, Marybeth Peters. (David O. Carson is the General Counsel) I hope that this is good, as she may remember the letter and will be able to tell us whether it was indeed an opinion that would hold up in a court. I hope to find a way to contact Ms. Kretsinger soon.
# Posted on December 29th 2003 by Zina Lee
Re: BMI again...
Just found this at http://www.copyright.gov/help/:
"Note that we are prohibited from giving specific legal advice and opinions. In addition, we are unable effectively to answer questions that raise complex issues and require a dialogue. In such situations, we may encourage you to contact us by telephone at (1-202) 707-5959."
I'll try giving them a call tomorrow. Interesting that -- I wonder if that letter was written because Kretsinger was writing to a Congressman?
# Posted on December 29th 2003 by Zina Lee
Re: BMI again...
This might be a nieve question, but....
What is the purpose of tapping them on the shoulder and asking if it's ok what is going on? I mean... how many sessions across the US are being played every night without worrying anyone about this? Is it a good idea to bring attention to the tradition? I'd hate to think someone at BMI being being hired to take pubs to task for hosting sessions, simply because we felt it was important to educate them about it.
# Posted on December 29th 2003 by glenn
Re: BMI again...
Zina:
Thanks for your effort in looking into this. The same sort of outrageous bullsh*t is being attempted in Ireland, only there, it's various politicos in Comhaltas who are attempting to corner "rights" on all performances of traditional music on the island.
The question was asked "is it a good idea to bring attention" to this, or ought we better just keep our heads down; a fair question.
There may be a useful parallel here with the relatively recent concretization of airline regulations regarding musical instruments as carry-ons. Post 9/11, the assistant director of the Transportation Security Administration was prevailed upon to write a letter to the President of the AFM (American Federation of Musicians), laying out, in clearcut language and detail which had *never* previously been available, the TSA's policies and dicta to the airlines. The document, though very brief, clearly states that musical instruments are *not* to be counted as part of the "one carry-on and one personal item" allowance, and at least implies that musicians are to be facilitated in treating their instruments as legitimate carryons. AFM Local 1000, the cross-country local for folk musicians, has a pdf of this letter (on TSA letterhead) on their website (at http://www.local1000.com/carryon.php). I have a laminated copy in every instrument case I own, and it's saved my butt on several occasions. I've also noticed that, post-9/11, for the first time airport security people actually *have* a standard set of procedures for dealing with instruments: this is good, as it precludes people just "making up the rules" as they go along.
I mention this because we might have an analogous situation here. If Zina is able to get a BMI/ASCAP/copyright person to understand the unreasonableness of rigidly applyign copyright concepts to anonymous folk tunes, and put that understanding into writing, that document could be as useful as the TSA document cited above.
Not all people in suits really *want* to do in the Music. This issue also seems like a very good candidate for an Internet-based electronic-petition campaign a la MoveOn.org
chris smith
# Posted on December 29th 2003 by coyotebanjo
Re: BMI again...
A copy of the e-mail I just sent to the US copyright office:
Hi:
I'm currently investigating BMI and ASCAP licensing issues and need help. I am a musician, playing Irish traditional music on the fiddle.
There are two issues that I believe I need help on (though I am fairly sure that those two issues will lead to others).
First, though I understand that you are unable to give legal advice and/or opinions, I do need to know if the opinion that Marilyn Kretsinger gave in her letter of November 27, 2001 to The Honorable John M. McHugh is still the current opinion held by your offices. (The text of this letter is found online at http://users.westelcom.com/minstrel/kretsinger.htm)
Second, I would like to know how the Library of Congress and the Copyright Office track Irish traditional music. Ms. Kretsinger's letter to Mr. McHugh essentially lays the burden of proof upon the owner of the establishment and thereby onto the performer. Many of the tunes have unknown composers or composers who lived over 100 years ago. Even now, many composers of tunes in the genre of Irish traditional music consider their works to be in the public domain (although I currently assume that most have no idea how to formally go about doing so; I don't know myself).
How do we go about discovering whether tunes such as "The Maid Behind the Bar" and "Brian Boru's March" are in the public domain? I was unable to figure this out from the website. I can't imagine, however, that we're the only traditional musicians to need this sort of information; bluegrass and Applachian and other traditional folk musicians must surely have need of the same sort of info, so I am hoping that you've something on this kind of topic for me.
Thank you for your assistance. I will look forward to your earliest possible reply!
Zina Lee
# Posted on December 29th 2003 by Zina Lee
Re: BMI again...
Thanks, Coyote - that was very helpful. I haven't been flying as much lately with the fiddle as I used to, but that link should be on every trad page out there.
Thanks also to Zina for looking into things.
# Posted on December 29th 2003 by glenn
Re: BMI again...
Zina - Keep at it. BMI sounds like they're pushing reality and legality quite a bit there. Let us know what you find out, but I don't see how their position can be legal if the works played are not licensed in some format.
Eric
# Posted on December 29th 2003 by Jayhawk
Re: BMI again...
Here in Ireland, an IMRO license is required by any business which plays music (including recorded music!) in a public place. Since nearly all pubs play CDs, they are required to pay a license fee regardless of whether or not they host trad sessions. Citing the license fee as a reason for not hosting a trad session therefore strikes me as disingenuous! I believe it ought to be possible to obtain an exemption in the case of pubs which are committed to the playing of live trad music only, and to never, ever, playing any form of pre-recorded music, but in reality, how likely is this?
While I acknowledge the flaw in the system, I am a little wary of the tendency to demonize IMRO and its related organizations. Composers and songwriters have a right to some return on public performances of their work (otherwise thy don't eat). They are not all millionaires, and many of them are struggling.
There was a discussion thread a while back about members' day jobs, for some people this IS the day job, and a precarious one at that. What I'm saying is, by all means deal with the problem,but bear in mind that these organizations are not just big, faceless corporate machines. They collect royalties; and those of us who write and arrange music are very glad that they do!
# Posted on December 29th 2003 by Muireann
Re: BMI again...
Muireann - I agree that composers should obtain royalties for their own works, and if someone plays an exact arrangement of a traditional tune that's a situation where royalties should apply, but I've seen to many "arranged" versions of trad tunes that are nothing more than writing down the ornamentation that's been played in sessions for years (and I don't think that because a trad tune has been arranged by someone means that the trad tune itself is copywrited).
Just so you don't think I'm anti-composer or royalties, my uncle makes a living writing music that is predominantly played by others like Eric Clapton (my uncle is JJ Cale) and my wife's uncle is a long time struggling blues musician up in Wisconsin.
Royalties are perfectly fine when properly applied, but I don't think BMI is properly applying the laws and regulations over here in the USA.
Eric
# Posted on December 29th 2003 by Jayhawk
Re: BMI again...
Why not file a copyright doohickey under the name Trad Anon pertaining to all musics such as are played under the idea of traditional/folk musics?
Now, where are the comments of nieve?!
(spelling help appreciated.. ) ;)
Pádraig ceoilteoirí
# Posted on December 29th 2003 by Pádraig
Re: BMI again...
Am I being naive or nieve?
In Li'l Ol' Englandland, we thought BMI was Body Mass Index and was talked about all the time in the US of A due to amount of hamburgers eaten (touchy subject lately), but we seem to be wrong.
How does this silly legislation deal with arrangements written by the person playing?. If you are not playing from dots and play some variations, isn't it your own arrangement?
To quote Neil Kinnock, it sounds stupidly daft and daftly stupid.
# Posted on December 29th 2003 by geoffwright
Re: BMI again...
I don't know the details of the legislation in the US, but it seems to me that the old Law of Unintended Consequences may be at work. It is a law you'll find in no legal textbook or in any statute, but tends to come into force when other legislation reaches a certain level of complexity.
In the UK we have something called the Data Protection Act, and it seems that earlier this year the Law of Unintended Consequences came into operation with tragic effect, as follows.
A young man applied for and got the job of janitor at a village school. He later murdered two 10-year old girls from the school and has since been convicted and sentenced to life (in the US he would have got the death penalty). After his conviction it came out that a few years previously he had been very closely associated with the rape and molestation of several young women and girls, and a burglary, in his home town a couple of hundred miles away, but was never charged or appeared in court, although the burglary charge was apparently allowed to remain on file.
The police in his home town did not release this information because of the Data Protection Act when the school authorities researched the guy's background. If they had, it would have been absolutely certain he would not have got the job of janitor, and those little girls would have been alive today.
Trevor
# Posted on December 30th 2003 by lazyhound
Re: BMI again...
Well, I'd say it's some over-enthusiastic BMI/ASCAP reps who are rather mis-interpreting the BMI and ASCAP thing. (From what I hear, they're paid by the job.) When Mary and Dallas first opened their pub, BMI threatened them with a lawsuit before they'd even gotten the doors open -- they had *proof* that Mary and Dallas were having music there, and in vain did Mary tell them that they hadn't even gotten tables and chairs into the place yet, BMI was *sure* that they were having performances in the place and were therefore going to sue them out of existence before they even came into existence.
This time, Dallas is furious because the rep threatened Mary, saying that he'd sent a letter to Dallas AND talked to Dallas as well, and Dallas says that he hasn't talked to anyone from BMI since the first time they went round with them. So they've caught the rep out in another rather big lie and are in a mood to pursue the matter.
Me, I'm sick of hearing these stories. What I'd like to do is try to find a way to force the issue so that we can have some kind of landmark decision or case made by the Authorities That Be to keep musos from being able to play. If we can get a letter or opinion or case together, then every other muso in this position will be able to show proof to pub and bar owners to give to BMI and ASCAP and other performance right organizations.
Otherwise, it's back to houses and church basements for us all, eventually. That wouldn't necessarily be a terrible thing, but it would definitely change our global community in a large way.
# Posted on December 30th 2003 by Zina Lee
BTW.
in regards to the license paid for the playing of CDs, our pub uses a music service from AT&T, which is like Muzak. The license is paid for by the music service, and the pub pays the music service in turn for it. They can even choose what kind of music they want to play (and in fact often choose the traditional and modern Irish "station" although usually it's class rock) over their music system (which is limited by square footage and number of speakers allowed to that square footage, in order to meet BMI/ASCAP regulations).
So, no, directly, they have no license because their licensing is indirect.
# Posted on December 30th 2003 by Zina Lee
and also BTW.
For historical information on performance right organizations (PROs) in the US, see http://www.usdoj.gov/atr/cases/f6300/6395.pdf, beginning at page 5 of the pdf document.
# Posted on December 30th 2003 by Zina Lee
Re: BMI again...
Had a similar problem when living in Italy where we were required to fill up a sheet with the list of music we were intending to play BEFORE starting. Inspectors would drop in from time to time with serious financial consequences for the bar owner if this list was not completed.
We got around the issue by listing almost all of the tunes as ANON. and therefore no royalties were due.
# Posted on December 30th 2003 by Joe Quinn
Re: BMI again...
I'm looking over the letter Dallas got from ASCAP, and I'm looking at the on-line database of tunes that ASCAP "protects."
(at www.ascap.com under the ACE Database.)
The letter claims that we need to "obtain permission to perform music in the ASCAP repertory at your establishment. It is much simpler and less burdensome to obtain a single license agreement with ASCAP than to secure permission on an individual basis from our members to perform their music in your establishment."
It is interesting to note that they have "the Mason's Apron" listed, which is in O'Neil's collection of completely provably-traditional tunes. Also they have "Trip to Durrow" listed as having been "written" by "Patrick Maloney." Also in there is the "Sligo Maid's Lament." which I have on an old Seamus Ennis recording. They claim it was "written" by Naylor Oscar.
I'm going to find out as much as I can about this...
-Dirk
# Posted on December 30th 2003 by dirk
Re: BMI again...
Part of the problem is that you can't copyright a title. Just because ASCAP lists "The Mason's Apron", "Trip to Durrow", and "Sligo Maid's Lament" as protected, it doesn't mean that these titles refer to the traditional tunes that go by the same titles. Another part, as mentioned before, is that sometimes it's the arrangement that is protected.
The PROs are in a rather difficult position. There's no reasonable way for them to check whether any particular tune or arrangement that gets performed is registered with them. They have to do business on the assumption that at a public performance venue, a certain percentage (on average) of the music performed is in their catalog. For most venues, that's probably a fair assumption. For some types of venue, it's likely that they are way off.
Part of the problem is in convincing them to look closely at the exceptional venues, realize that they are exceptional, and create a more realistic, and reduced, fee structure.
But I expect that most venues that think they are exceptions really aren't. We all know of the pub that has a session once or twice a week and performers Thursday through Saturday, for example. Even if the performers do popular Irish pub songs, I'll bet a minimum of 75% of what they play is under copyright. Think Christy Moore, Luka Bloom, Eric Bogle, Ewan MacColl, Ralph McTell, and much more. If the pub owners are using the performance of songs by contemporary authors in an attempt to generate business, then the songwriters deserve compensation.
And even in the session, there are plenty of recently composed standards (Fahey, Crehan, Reavy, Ryan, etc.) for which the authors (or their heirs) are entitled to compensation when their tunes are played to encourage patronage at the pub. Of course most composers of session tunes know full well that they're not going to make any money this way, and would be happy just to know that their tunes are being played. (Of these four, only Fahey is listed in ASCAPs database, from when one of his tunes was recorded by James Galway. The other three are in BMIs database, but only two of their specific tunes are listed. In contrast, Liz Carroll has 51 tunes registered with BMI.) Still, it is the performer's responsibility, as a courtesy to the author, to obtain permission to use the tunes. On the other hand, as a practical matter, this is impossible.
But couldn't the composers simply put their compositions in the public domain? If they did, it would be like throwing away a lottery ticket before the drawing. What if some company used their tune, which they gave to the public, in a huge TV ad campaign? What it was on the soundtrack of a major motion picture? So composers are in a bind, too.
So back to the pub, but now one that has only a traditional instrumental session once a week and no other music. Now, instead of a large percentage of protected material, it's a much smaller percentage, maybe 10% or so. And the composers aren't (for the most part) expecting any compensation (though they'd be entitled to it). Problem #1 is that the PROs are still obligated (by their composer members) and entitled to collect. Problem #2 is that the money they collect is distributed (at least in the US) based on airplay samples. Genres that are below the pop culture radar don't make the cut, and the composers get little or nothing. Problem #3 is that the PROs don't recognize this situation and attempt to collect as if it were the pub with the bands that play mostly contemporary covers. Problem #4 is the strong-arm tactics that Zina described.
At this point, I spent 45 minutes or so digging around on the databases. Ironic discovery: Shannon & Matt Heaton and Beth Leachman are listed as composers of "Reel of Rio", which was actually written by Sean Ryan. (It looks like when they were registering their CD, they confused the artist and songwriter/composer categories.) But anyway, I've now lost track of where, if anywhere, I was going with this.
Anyhow, it's an extremely complicated issue. The North American Folk Alliance has been negotiating with ASCAP and BMI over it for the better part of a decade without much progress. Here's a brief report from them: http://www.folk.org/Advocacy/advo1003.htm - scroll down a ways.
One thing you might want to do is record your sessions every week. If you record in mono on minidisc, you can get 2.5 hours on a single disc. Keep an archive as evidence to use in case it comes down to a lawsuit. Maybe after each set of tunes, someone could say the titles.
Just being able to say that you have such recordings might scare the PROs off.
Well, that's more than enough from me.
OK, one more thing. Way back when, Morgana asked whether it made any difference whether or not it was a paid performance. It doesn't matter who is getting the money. Copyright, in theory (and presumably in law), means that you need a license (i.e. permission) to perform a work in public. That could be as simple as phoning your buddy and asking if you can play that tune he wrote at a benefit for poor little Sally's ailing hamster, or as expensive as buying an ASCAP and BMI blanket license covering their entire catalogs. (They base their fees on the type of venue - store, bar, restaurant, community hall, theater, etc., capacity, and frequency of performance - or something like that, approximating potential revenue - not on what the actual revenue is, how many people are listening, or how many songs from their catalog are actually used.)
OK. Now I'm done.
# Posted on December 30th 2003 by GaryAMartin
Re: BMI again...
An interesting discussion of ASCAP and BMI, which doesn't bode well for trad musicians:
http://www.woodpecker.com/writing/essays/royalty-politics.html
No real beefs with your points, Gary, except for the Problem #1: ARE the PROs entitled to collect on traditional music? At least for the tunes that no one knows who wrote them? That's what I'm hoping to find out from the Library of Congress...
# Posted on December 30th 2003 by Zina Lee
Re: BMI again...
Anything published before 1923 is in the public domain, according to current US copyright law. Anything else is probably protected by copyright unless the copyright holder failed to follow the required procedures (like putting the little c on it, which was required until 1988). The PROs are entitled to collect on any copyrighted work that is registered with them by the copyright holder.
"Happy Birthday" was written in 1893 but not published until 1935. It's protected by copyright (owned by AOL/Time Warner) until at least 2018. Public performances require a license. AOL/T.W. make over $2 million per year on this song.
Enya was sued for using (without attribution and without paying royalties) a verse to "How Can I Keep From Singing" that was written in the 1950s. She won the suit because the author had failed to protect her copyright by permitting Pete Seeger to record it earlier without attribution. But Enya was guilty of not doing the proper research and just got lucky.
The Kingston Trio was sued (they settled out of court, probably because they would have lost the case) for using a copyrighted version of "Tom Dooley". They could have done the research and found a public domain version instead, but they didn't.
I've summarized these examples from a very well-written article by Peter Irvine, who is an entertainment lawyer and a musician (member of Cordelia's Dad, a now-defunct, or perhaps very occasional, band that performed mostly traditional music). The article is in PDF format at http://www.peterirvinelaw.com/pdf/Folk_Music_Copyright_PD.pdf .
# Posted on December 31st 2003 by GaryAMartin
Re: BMI again...
Yeah? Except that The Mason's Apron shows up in the ASCAP database as "written by" one CARR EAMON JOHN, along with Silver Spear and over 70 other common tunes. Does that mean the tune is copyrighted by him, or the arrangement? (Do we need to make up settings of each and every common tune that everyone who records then needs to swear that they will never record so we have something left to play out *with*?) And if he happened to have recorded a "traditional" arrangement (or, in the case of our particular music, setting and variations) rather than one he made up himself, what does that mean when you consider that we all do that setting and similar variations and have for quite some time before CARR EAMON JOHN was born much less recorded?
How the hell do you put a little copyright notice on a tune that's passed on aurally?
The trouble is, this is a form of music that *is* passed on aurally and is mainly played by amateurs, in arenas such as public spaces. What I want is for everyone to know, bald-facedly and obviously, whether it's actually illegal for us to play out, because if it's illegal, than we all just have to take our chances if we do so, knowing full well that the un-licensed pub owner could well be threatened and sued for our actions. Whether you then choose to raise that money for the licenses (for both ASCAP and BMI here in the States) for the owner or if they pay it incidentally is up to you and the owner...
Dirk has had his first preliminary discussion with a lawyer. We'll get back to you with what he tells us after a few exploratory searches...
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
I looked up Eamon Carr on Google and discovered that he's the drummer in Horslips (celtic rock). The titles that ASCAP's database attributes to him are also attributed to the other band members as co-authors. The titles are titles of cuts from their albums (or at least the few I checked are). On that basis, I'd assume that they are claiming ownership of the arrangement, which in the case of a rock band is pretty substantial.
Of course, it may take some work convincing ASCAP that what gets played in a session is not Horslips' arrangement, but it seems like you could do it if need be.
The little c WAS the responsibility of the author/copyright holder, not the performer. It's totally irrelevant today, and has been for 15 years.
# Posted on December 31st 2003 by GaryAMartin
Re: BMI again...
Zina, let's cut to the chase.
Zina:"What I want is for everyone to know, bald-facedly and obviously, whether it's actually illegal for us to play out."
The answer is no, it is not illegal for us to play out.
It *is* illegal for the pub (a place of business for profit) to host a session regardless of the type of music (public domain or copyrighted) without obtaining a liscencing agreement with ASCAP/BMI (or international counterpart).
This issue is between the pub owner (business person) and BMI/ASCAP (and international counterparts) who represent artists. It's a cost of doing business no different than having to get a business liscence from your local extortionists (your local government). For that matter most municipalities require pubs to obtain a "cabaret" or PPA (place of public amusement) liscence if they are going to host live music.
If the pub owner doesn't want to pay the fee (or obtain the proper local liscences) that is their business decision. Then you have three choices. Pass the hat once a year to pay the fee or find some other place to play. Or just keep playing and don't worry about it. If the pub doesn't already have a royalty agreement with BMI/ASCAP chances are the fee will be relalively small because it clearly is not a major venue. By relatively small I mean a few hundred bucks. Probably less than the required local liscenses (business and PPA).
Once again we have confused 'copyright' and 'royalty'. The copyright laws have nothing to do with royalties and liscencing. Copyright laws establish legal authorship and that's it, nothing else. The Copyright Office (and the Patent Office) have nothing to do with business agreements.
Royalties and liscencing are a negotiated business agreement between artists and publishers. BMI/ASCAP are the representatives of artists and publishers when dealing with broadcast and live venues, since in these circumstances it is difficult to track actual sales. These are all 'voluntary' agreements. Sure, some of it may seem a bit coersive but they are all business agreements and not legal requirements. No one is legally required to join ASCAP and no one is legally required to become a pub owner. If one chooses to become a pub owner no one legally requires you to have music in your pub. (At this point you are legally required to stuff the pockets of your local extortionist by obtaining a business liscence.) If you make the business decision to have music, live or recorded, you are now legally required to obtain a PPA liscence and music liscencing agreement. That's business!! Pay the fee or don't pay the fee. It's a simple business decision.
# Posted on December 31st 2003 by Tusong200
Re: BMI again...
Yes, but see, that's not Right (because ASCAP and BMI and their members don't own the right to the tunes that are truly traditional and those that are given to the public domain) and it doesn't make sense, and I'm willing to waste an amount of time on it to point that out to the powers that be, even if it's throwing pebbles at Samson. Just because it's the way it is doesn't mean that it's the way it should be, and if you just accept the way it is over the way it should be, the world quickly goes to hell, and you don't get to complain about it if you don't make the effort to protest.
Without people like you, nothing gets done, and without people like me, what does get done gets done without making sense.
Because that means it IS illegal for us to play out freely in the manner to which we are accustomed, in a wholly practical sense rather than the letter of the law. Reason is no good without Rhyme.
If you are okay with the status quo, Tusong, then you are, and you can go away now all comfy in knowing that you've made your point. Me, I'm not, and I'm comfy with that too.
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
Waste all the time you want.
It is laughable that you think you can point out to ASCAP something that they don't already know, as if they are not aware of public domain tunes being played at sessions. They (and their voluntary members) have no assurance that you or your session has not, does not and will not ever play any copyrighted tune at your session held at a place of business for profit.
Are you going to be the enforcer?? Next time somebody starts up Dusty Windowsills you'll butt in and say what??
"Oh no, stop, that's Johnny Harling's tune!!!" So somebody starts up the Donna Waltz.
Zina jumps in and says "Stop, stop, stop, that's Phil Cunningham's tune." House of Hamill??
"Stop!! That's Ed Reavy." Let's do MacArthur Road.
"Oh no, we can't. That's Dave Richardson." That's Right Too??
"Can't do it, that's Liz Carroll."
How's about Calliope House??
Zina quietly says "I guess that'll be OK , but I'm not sure........"
Everybody starts in and has a great old time playing a nice tune together. Except because Zina doesn't realize that the tune was written by and is copyrighted by Dave Richardson of the Boys of the Lough, who has a negotiated royalty agreement with his publisher and is a member of BMI (or ASCAP), the PUB OWNER IS NOW LIABLE!!!.
ASCAP knows that this will happen. I know it and you know it. The pub owner has to pay the fee.
What's the line about having the courage to try and change the things you can and the endurance to suffer the things you can't and the wisdom to be able to tell the difference.
I'm sure that there are all sorts of things in your local community that would make you feel much more 'comfy' if you put the effort in to change those situations, and I'll give you the benefit of the doubt and assume that you do. With all the really serious problems in this world having to do with right and wrong I'd be ashamed to put this issue very far up on the list.
# Posted on December 31st 2003 by Tusong200
Re: BMI again...
Would you? Too bad for you then, because it has a lot to do with how the music is played, shared, and disseminated in our community -- and I'm not talking about ASCAP or BMI who know exactly what they're doing. If you like to have a bit of fun at the expense of those who tilt at windmills because it's right, then go ahead, but it makes you look a bit of an oik.
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
Well excuse me for disagreeing with you. At this point I'm not sure exactly what you're getting at. I can assure you that I was not attempting to have "a bit of fun at the expense of those who tilt at windmills", just expressing my opinion that your efforts are, as you admit , quixotic.
Perhaps I "look a bit of an oik' because I've expressed an opinion that doesn't agree with your world view. I don't feel like one and it won't stop me from expressing my opinions. I don't think that they are that nefarious. However, since this seems to have turned personal, I will wish you a Happy New Year.
Good Bye
# Posted on December 31st 2003 by Tusong200
Re: BMI again...
Feel free to disagree with me, but don't go putting words in my mouth that I wouldn't put there. If by any chance I and anyone else who gets involved does manage to have something done about the fact that ASCAP and BMI are trying to corner the rights on something they have no right to, then everyone benefits from it, and someone will have stood up for whats right.
It may be quixotic and ridiculous to you, but certainly not laughable to me, so you can keep your ridicule to yourself.
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
Zina, I thought you might appreciate this link:
http://sniff.numachi.com/~rickheit/dtrad/pages/tiASCAP;ttMICKYMS.html
-- Scott
# Posted on December 31st 2003 by srt19170
Re: BMI again...
There are two issues here.
One is, "Are BMI/ASCAP overreaching?" To which the answer is, sure. On traditional music, all that they would have rights to are specific arrangements by signatories.
But the second issue is one of practicality. Can you be sure that you will never have a situation in your session where someone plays a tune which is legitimately BMI/ASCAP controlled (by license)?
Now, if you are playing at a venue which has refused to sign up with BMI or ASCAP, on the grounds that no music to which they have rights is being played, if you play only traditional tunes (and don't play any arrangements lifted straight from someone's CD), you should be fine. (*)
However, if you do happen to play a modern composition to which BMI or ASCAP have been assigned the rights, and they happened to have someone there at the time, it is my understanding (with the caveat that I am not a laywer), that they could go after the venue or performers for willfull copyright infringement (since they had been notified). And willfull infringement of a registered copyright is subject to statutory damages (which are quite steep).
Regards,
--Dave
(*) Of course, the legal costs of fighting this would likely dwarf the license cost.
# Posted on December 31st 2003 by Dave Weinstein
Re: BMI again...
Zina: "don't go putting words in my mouth that I wouldn't put there".
Whoa!!, where did I do that?? Specifically.
I've reread my two main posts and I don't see anything at all personal in the first post. In the second post I described a scenario that included you as the 'enforcer' only because this thread is your thread and I was specifically trying to represent in an anecdote why ASCAP would find it difficult to accept that only public domain tunes would be played. I did say that it was 'laughable' to think you would point out something to ASCAP that they don't already know. I still think that this statement is true, they've been in this business for decades. However, if the use of the word 'laughable' offended you, I apologize.
However, your most recent posts seem belligerent and are not flattering to you. In you first post you said "Comments, ideas, and thoughts welcome". I misinterpreted that statement. I didn't realize that only comments, ideas, and thoughts that are in agreement with yours would be allowed. Otherwise one seems to risk being told to "go away now all comfy" and to be called names.
In another post you said we have to deal with this problem "Otherwise, it's back to houses and church basements for us all, eventually." Perhaps that statement isn't ridiculous or laughable, but it is alarmist and incorrect. (Are those words that I am allowed to use??) I know for a fact that all of the pub sessions in Chicago that are listed on this site pay the performance rights fee (many of them for decades) and are not losing any sleep over it. Why do they do it?? Because it's a good thing for them to do as business owners in their chosen field.
# Posted on December 31st 2003 by Tusong200
Re: BMI again...
hmmmm...I smell a rousing discussion about American football about to ignite....
# Posted on December 31st 2003 by will harmon
Re: BMI again...
No, they do it because they have to, because it's not worth fighting the giants of BMI and ASCAP, not because it's a *good* thing -- just a *necessary* one in order to get through the day in peace, even though it's not right.
Well, Will, I can start it up on tipping bovines or roos, we've had lots of practise at this point at both. I just don't know or care enough about football to go for very long on it...
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
It depends. *IF* the venue NEVER plays anything covered by BMI/ASCAP, and they pay, then yes, they are doing so because they don't want to be harassed.
If, however, they play even one covered tune (leaving aside arrangements, I'm talking about one case where an actual modern tune is under BMI or ASCAP licensing), the actual statutory damages are likely to be considerably more than the licensing fee would be.
--Dave
# Posted on December 31st 2003 by Dave Weinstein
Re: BMI again...
Heh. Dave -- in the case of most of the club and pub owners I know (my husband is one), they paid because they ARE being harassed, as well as not wanting to be harassed. My husband tried fighting it, and almost every owner I know of tried fighting it, and eventually realized that ASCAP and BMI just have too much money and lawyers to throw at you; it was definitely cheaper to pay than to litigate, faster to just give in, and precedent is such that you'd lose if you fought anyway, no matter how right you were.
I used to work for lawyers, my husband has owned and worked in many clubs and cabarets, and I've many family ties in the government and service sectors. Believe me, guys, I'm not going into this blinded by Pollyanna possibilities.
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
Oh, and hey, my husband and I were laughing that possibly the "easiest" way to take care of the whole mess is to start up a PRO just for Irish traditional musicians and composers, just like BMI and SESAC did...of course, then you'd have quite another court battle on your hands...
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
Sure. But assume for the sake of argument you don't pay BMI or ASCAP, because all the tunes have been vetted as traditional.
At the end of a session, someone says, "Hey, it's Bob's birthday", and someone (for whatever reason, be it whimsey or too much to drink) toddles off "Happy Birthday".
If an observer happens to be in at the time, that would be willful infringement. It's the odds of a screwup that would make me say it seems far more practical to simply pay to get into the safe harbor.
--Dave
# Posted on December 31st 2003 by Dave Weinstein
Re: BMI again...
Yup, and that's where they get you by the short hairs. Because you know they'll now have their "detectives" in there at every opportunity, waiting for someone to sing Happy Birthday or whatever. Ex-boyfriend of a friend of mine used to work for ASCAP as an enforcer or whatever they call them. After six months, he quit, because he just couldn't do it anymore, for his own sanity and as a musician himself...
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
So, isn't this fairly academic?
It'd be nice to have a vetted list of guaranteed traditional tunes (say, for busking, if you are worried about enforcement there for some reason), but I can't see it being reasonable for a business owner to basically put their livelihood on the line on the basis of "if none of the people who visit this session ever screw up, it'll just be aggravation with BMI, if they do screw up, I close".
--Dave
# Posted on December 31st 2003 by Dave Weinstein
Re: BMI again...
Of course, it's academic. But sometimes you have to try even when you know the task is impossible. (Besides, I was asked to try by our pub owners, and I said I would, so I will.) And it's important to try for things that are right. Imagine a world where we only went for convenience; it'd be awful.
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
Here's the thing, and it may sound like heresy.
While BMI may use strongarmed tactics, I don't think they are necessarily wrong.
While it would be nice if BMI recognized that a venue playing largely traditional tunes would use a vanishingly small percentage of the BMI catalog (or cross-licensed catalogs), and therefore reduce the rates accordingly, I think it is reasonable to say that barring a case of an owner/singer/songwriter playing only his or her own work, any venue that has live music is eventually going to feature someone playing a BMI (or cross-licensed) piece, even if accidentally.
Regards,
--Dave
# Posted on December 31st 2003 by Dave Weinstein
Re: BMI again...
Well, use a political or other organizational entitity in place of BMI (use whichever one you want), and say that over again using that same sentence. "While *use your own word here* may use strongarmed tactics, I don't think they are necessarily wrong."
Sometimes, it's the strongarmed tactics that *make* them wrong.
For instance, the US Government didn't agree with, say, Microsoft's strongarmed tactics, and indeed told them that they were actually quite wrong, and yet all MS is trying to do is 1) make money for their work, and 2) make sure all their products worked well together. (They've certainly succeeded at the former, and the jury is STILL out on the latter.)
In fact, many people and organizations, including the US Government, have tried to tell ASCAP and BMI that they are, indeed, wrong, but the PROs have managed to run over them anyway because, and this is important, the alternative appears to be worse.
But that still doesn't mean that they are *right*.
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
I am assuming that we are using strongarmed tactics as a colloquial term (much like "playing hardball"), as opposed to a more literal "nice bar, pity if someone should blow it up" sense.
Saying, "if you don't sign, we will have people watching you and if you use materials we manage without a proper license, we will go after you to the fullest extent of the law", while colloquially "strongarm", isn't in the same category.
Nor are we, to the best of my knowledge, talking about BMI setting up BMI Catering, and demanding that you order snack foods from them if you wanted to be able to legally play music.
So, if they are being extremely rigorous in the enforcement of their legal rights, while tough tactics, they aren't reprehensible. If they are making frivolous lawsuits or sending thugs with crowbars, then I agree, they have crossed over the line (and in the latter case, would have crossed over a criminal line).
Regards,
--Dave
# Posted on December 31st 2003 by Dave Weinstein
Re: BMI again...
Well, technically we have forever, Dave, but suffice to say that I would assume that our definitions are probably different enough that "frivolous", "reprehensible" and "tough tactics" would take us far longer to define than I personally have patience for at the moment...
I'll let the lawyers tell us whether we can duke it out with the ASCAP and BMI reps under the legal radar, and continue checking into and doing what I can without the costs of legal proceedings, which has been my plan all along, after all.
# Posted on December 31st 2003 by Zina Lee
Re: BMI again...
I think you will find that BMI's stance will be if the name of the composer or arranger is lost to the winds of time it cannot be researched. And if it cannot be researched and proved to be clear, it will have to be placed in protected limbo (escrow) until such time as it can be proved to be clear. But they will be quite happy to accept your money and let you play.
The biggest argument I've ever had is with a professional songwriter buddy of my wifes (three # 1 songs with Garth Brooks). It was over this very subject. They are rabid about protecting everything whether they have a right to or not. If you call attention to sessions only bad things are going to happen. The tune may be clear, but the arrangement has a long roll on the 3rd bar of the "A" part, and it can't be played because Irish Joe Smith recorded it that way on his record back in 1968. So you have to treble it, or simply not have a note in that spot.
Oh, it's been 10 years, and Jenny still hasn't spoken to me.
Thanks, Ran
# Posted on December 31st 2003 by Ran
Re: BMI again...
The biggest problem I see here with all the arguments supporting BMI stance that every live venue should pay is simply that it sets up a presumption of guilt which in this country isn't legal. You, including businesses and corporations which have personal rights too (although I personally have issues with this concept), are presumed innocent UNTIL proven guilty.
BMI is presuming guilt right off, and their techniques verge on extortion - pay or we'll sue you so bad you're out of business. Simply, this whole issue violates constitution rights. If a serious lawyer were to look at this through a RICO Act perspective...well, it fits the profile for a RICO lawsuit. This site is worth a read:
http://www.ricoact.com/ricoact/index.asp
Just my $.02 worth.
Eric
# Posted on December 31st 2003 by Jayhawk
Re: BMI again...
Eric:
My understanding (and please correct me if I'm wrong) is that it's "pay, or we'll watch you like a hawk and if you play something you don't have the right to play, we'll sue you" (and since the statutory penalties for willful copyright infringement are so high, it is effectively "sue you out of business").
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
Dave,
from what I've heard from others, it's pretty much "we'll sue you and break you" kind of talk, and although I have not read the copywrite laws I'm guessing the penalties (and anyone feel fee to correct me) are to be decided by a jury of your peers which is the legal standard for all court procedeedings (unless you choose a trial by judge alone and decline your constitutional right to a jury by peers).
Really, there is a strong parallel between the mafia saying "pay us 'insurance money' so noboby breaks into your store" and "pay us a licensing fee even though you play no copywrited materials or we'll sue you and run you out of business". Further parallels - BMI is a large organized goup with a plan to control the business practices of business owners.
Also, I really go back to the onus is on BMI to prove that a song is copywrite infringement and not on the business playing the music. There is no law against live music, public domain music is legal (otherwise we wouldn't have a legal definition of it), and BMI should have to prove that the version of the Mason's Apron I play infringes on whoevers rendition and not the other way around. Again, I, and any pub owners, are legally innocent until proven guilty, and the burden of such proof lies with the accuser. Also, even if I play one measure as per a copywritten piece, that does not make copywrite infringement, I would have to play an amount the same that crosses that mythical/legal standard - again - a jury would have to say if that was done not BMI.
Eric
# Posted on January 1st 2004 by Jayhawk
Re: BMI again...
Eric,
Statutory penalties for willful copyright infringement are, if I recall correctly, $20,000 US per occurence. As they are set by statute, they are not (to my knowledge) determined by the jury. The jury would determine whether or not the infringement occurred. Of course just the legal costs of fighting a suit would take out most venues.
So if BMI sues *without* evidence that a specific song that they have rights to was played, I would agree that they were being abusive and that that needs to be stopped. If they have an agent in there, and spot a single tune (or more than one) that is legitimately (i.e. a modern composition) under license, then I cannot say that they are being unreasonable.
I understand that people are going to differ on how much enforcement of copyright is legitimate; and I recognize that, as someone whose work (non-musical, the one tune I wrote is free to use by anyone) is stolen on a daily basis, that this is one of my "hot buttons" and that I'm going to fall into the far end of enforcement here.
But since I do think that almost any venue that has live music will eventually (even if accidentally) play a modern composition that is under BMI or ASCAP licensing, it does make sense (and is reasonable) to pay a licensing fee.
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
Eric, that's interesting.
The biggest problem people have had in the past with the various legal actions against ASCAP and BMI is that both organizations are 1) non-profit, and 2) are intended and indeed do in fact act as watchdogs and cashiers for a previously unrepresented minority's (ie: performers and composers, albeit the top percentage that actually get sampled airplay--the rest of the country's pro musicians get nothing at all). This, coupled with the fact that they have comparatively unlimited funds and lawyers who have historically found every loophole previously unimagined in the books, has made suits extremely difficult. Even suits that have been successful have later been overturned upon appeal.
Still, it's not the first time that a good idea taken to extreme proportion has become a bad idea for yet another portion of the community it was intended to protect. There has to be a reasonable solution. Personally, I doubt whether it will be in the courts that that solution will be found, but I'll contact Mr. Grell anyway to see what he thinks.
(The RICO Act, covering racketeering charges and often informally referred to as "The Mafia Act", is the one that Richard Hayes Phillips refers to in his letter to The Honorable John McHugh at http://users.westelcom.com/minstrel/mchugh.htm. Reading the entire "BMI Appendix" at that website is fairly interesting. Whether the opinion of the Assistant General Counsel to the Register of Copyright--and therefore the Library of Congress--would stand up to scrutiny in court opposite BMI/ASCAP lawyers is an interesting point, especially in a RICO suit. Phillips believes that "...the point is so obvious
that it has never been litigated, which makes this a landmark decision." I'm not so sure that it is a landmark *decision* per se, since no one legally did any deciding, but it's definitely something worth considering.)
# Posted on January 1st 2004 by Zina Lee
A bit of irony
Anybody else remember Chief O'Neill's description of an old muso who obligingly played his tunes into the horn of one of the new-fangled phonographs? When they played his tunes back at him, he started hitting the machine with his cane, thinking it was a work of the devil? Whaddaya know, the old guy was right! LOL
# Posted on January 1st 2004 by Zina Lee
Re: BMI again...
Dave,
thanks for the info. on the fine per occurrence. I agree the biggest issue in defending anything along this lines is going to be the legal fees.
Also, as I said much earlier on, I'm not against fees/royalties for legitimate copywrite material at all. And I also agree that many/most pubs already pay licensing fees so that part is moot, but I do think small venue oweners who might have an open mike night for original works or traditional music might be scared off by the BMI representatives.
I may just be a bit like Zina - I don't like things being done that are wrong even if they were initially started for good purposes. Also, power corrupts, BMI/ASCAP are now very powerful organizations, and it just seems like more and more they are crossing the line.
Eric
# Posted on January 1st 2004 by Jayhawk
Re: BMI again...
Let us assume, for the sake of argument, that we have a new PRO.
TRAD, which exists only to note tunes which are verified to be out of copyright, or which the author has assigned to TRAD for the sole purpose of assuring that no fees are required to play it.
Let us further assume that BMI and ASCAP have agreed, in writing, that they have no claim over TRAD listed tunes.
Now we have our TRAD signatory pub, with its weekly session. It doesn't play pre-recorded music, so it doesn't have a BMI license.
With all this, IF there happens to be a BMI enforcer in the room, and someone plays a Liz Carroll original tune during the session (since those are listed with BMI, as far as I can tell), THEN the venue is *still* liable for statutory damages.
This is why I can't see it ever being safe for any public venue that plays live music NOT to have a performance license from BMI and ASCAP.
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
For the love of god, Dave, it wasn't for the sake of argument, it was a joke -- BMI and ASCAP would fight like bloody cats and dogs before they'd allow it, it'd never get off the ground! Why the heck are you so set on arguing that BMI and ASCAP fees should be paid regardless of whether it's right or not, anyway? It will be what happens, but that doesn't make it right, can you admit that? What the heck is actually going on here?
# Posted on January 1st 2004 by Zina Lee
Re: BMI again...
If you never play BMI covered tunes, then it ISN'T right that they demand a license.
I just have trouble picturing a case where you can guarantee that BMI tunes will never be played.
I fully support an attempt to try to negotiate a lower fee schedule (on the grounds that say 90% or 95% of the music is public domain), but that is a separate matter from whether or not a license should be purchased at all.
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
Yes, I'd say being covered in case your patrons decide to sing Happy Birthday to someone in your restaurant would be good. $600 a year is all it takes!
# Posted on January 1st 2004 by Zina Lee
Re: BMI again...
Wait, this whole fight is about $600 US?
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
Wouldn't a simple signed agreement stating the venue does not allow for playing copywrite protected material signed by the performers agreeing to abide by such keep the venue from being in violation? Naturally, it would need to state any performance of a licensed piece by a volunteer would be the responsibility of that performer? Would BMI sue an individual who they know they'd never get a penny from?
Where does the first amendment fit into all of this? If I extemporaneously pull my flute out at a bar (everyone stop smirking now), play a tune like Leon's Waltz, am I in violation of copywrite infringement? The bar owner has nothing to do with it, I'm not charging anything, so it seems like I should have the right to play that tune as a freedom of expression. Hell, I own it on CD, so it's not like the performer wasn't paid in the first place. AND, it's not illegal for me to play a copywritten piece for my own personal amusement or that of my friends as long as it is not a public performance.
I think there are a lot of moral issues modern society expects us to ignore, and it will only get worse if people don't stand up and make a little fuss now and then.
Eric
# Posted on January 1st 2004 by Jayhawk
Re: BMI again...
No, that's just the BMI side, Dave, then there's the ASCAP fee to be paid as well. For a small club owner, struggling to make payroll on little to no margin, that's a ton of money. Are you offering to pay it for them, though? ;)
Eric, nope, none of that works because the performer has nothing to do with it -- it's being done on the premises of a business that is making or has the potential for making profit, and that's who needs the license. This is why you'll see pub owners rushing out and apologetically but urgently making anyone making any kind of music stop.
Usually you won't actually see anyone getting in trouble for "Happy Birthday", but it has happened (and in fact would probably be guaranteed to happen to a bar owner who insists on fighting BMI or ASCAP), just like when ASCAP went after the Girl Scouts for singing round the campfire, their most famous PR fiasco to date.
# Posted on January 1st 2004 by Zina Lee
Re: BMI again...
Oh...and first amendment wise, take a look at the letter to Congressman McHugh again -- but the reason it's never enforced is the Law of Convenience. The Law of Convenience comes into effect when the rights of a minority are being affected by the rights of the majority being enforced. It generally only stops holding sway when the minority can find a way to beat the majority and often involves a sacrificial lamb or two. Volunteers? Anybody? *grin*
# Posted on January 1st 2004 by Zina Lee
Re: BMI again...
If the venue could get legal contracts from the performers indemnifying it, I suspect the venue would be fine. The performers would potentially be on the hook for a lot of money (which might make it harder to get people to play).
As far as the First Ammendment, it doesn't fit into it pretty much at all. You have every right to express yourself. You don't have a right to express yourself with someone elses intellectual property. For example, you cannot scan a book and email it to all of your friends because it expresses something you agree with, and defend yourself with "but I wasn't making any money on it" or "it was freedom of the press".
There is no right at all to use someone elses copywritten material. If someone writes a tune, and declares that any performance of it has a $5,000 performance fee, your only legal options are to pay it, or not play it publically. If you are quite young, and from a long-lived family, and Congress doesn't decide to extend copyright again, you *might* live long enough for it to pass into the public domain, but that's another matter.
The problem here is, BMI has such a large catalog of materials, that eventually, someone WILL eventually accidentally play a covered tune. And since you have no right to do so (even by accident) as a public performance, they can go after you for the statutory penalty.
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
Assume the pub hosts 30 sessions a year (a little more often than every other week)...
That comes to thereabouts of $20 per session.
If my local sessions needed to pass a jar to meet the BMI/ASCAP fees, sure I'd kick in. If it were my only session, and no one else could contribute, I'd likely pay the whole thing.
The Richard Hayes Phillips case is very much the exception, and I agree fully that BMI was in the wrong there. But that is vanishingly rare, and it isn't entirely applicable here (since you cannot guarantee that no one in a session will kick into a covered tune).
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
Dave, I'm in complete agreement with you on this issue.
Many of the Sessioneers seem to paint this issue as a moral issue of right and wrong. I approach it as a practical issue of good or bad choices, that is, beneficial or counter-productive. No pub owner makes a business decision that he believes will be bad for his business. Every business person makes decisions based on the belief that the choice will be good for business, that is, productive and revenue enhancing. That's what they are in business for.
Sure, every pub owner complains about paying ASCAP just like they complain about having to sign an exclusive deal with their beer distributor. "Hey, buddy, if you want to buy draft Bud from us we gotta be sure you ain't gonna be selling none o' dat Miller Lite draft." They complain about the price of the beer. They complain about having to pay the business liscence fee, property taxes, PPA (cabaret) liscence, having to upgrade kitchen equipment and the building, having to pay to get the mandated improvements made to the sidewalk in front of the building!! If the TV breaks down they have to buy a new one. Nobody likes to spend money but ultimately the business decision is made that it will be money well spent. If you don't want to be confronted with these choices you can close your doors and go get a job flipping burgers.
I'm actually surprised that several days into this thread no-one has questioned the pub owner's complicity in this *travesty*. I played at a session for many years in a restaurant that required the session members to come up with the fee every year. We were *lucky* enough to have 20 or 30 people to tap for the $350 so it only cost us $12 a year. But that place was packed, standing room only, every Tues from 5:30 to 10:30 every week. Any other day of the week they were lucky to get the place 1/2 full. They made enough money on any one Tues. to pay that fee for the year. It made my skin crawl every year, not because of ASCAP, but because of the restaurant. They loved having us there filling their coffers every Tues. nite. "Free entertainment!! What a deal. In fact they're actually willing to pay to play!!??"
No, thanks!! Pub owners approaching the musicians when they are contacted by ASCAP/BMI have been painted here as innocent bystanders. Not in my opinion.
# Posted on January 1st 2004 by Tusong200
Re: BMI again...
To take Eric's point, I guess once you play a piece for the amusement of your friends then when does it go over a threshold and become entertainment?
In the UK we are faced with a Public Entertainment Licence which basically makes venues have to have a licence for musical performance even when it's just people playing in sessions. I personally don't think that playing in a session is for public entertainment. If people listen, that's great, but primarily we play music to share stuff, don't we? To me it's more like a conversation than a performance. If it's copyright stuff, then does it matter? Applying this principle to speech, are we going to have people listening in to conversations to check in case someone quotes a line from a TV show / movie etc?
Maybe I shouldn't have suggested that, even jokingly! You can be sure there's some bureaucrat, somewhere, who's just waiting for more ways of screwing money out of people.
Mark
# Posted on January 1st 2004 by Mark Harmer
Re: BMI again...
In the United States, I suspect the distinction is whether or not the music is being played in a "Place of Public Accommodation". In fact, the BMI web page specifically refers to "public performance rights", which would exclude private residences, and so forth.
Moreover, given previous discussions on how a good session can help business at a pub, it is, I think, a bit disingenous to claim that a session is just a private conversation. For that matter, you are unlikely to see a bar advertising that it has a "Private Conversation, every Sunday at 4pm".
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
That's correct, and as a matter of fact, it's probable that we'll continue to play that session, but in my living room or somebody else's, which is just fine by me, whether the beer and food is free or not (which has been the case at our local up to now) -- that's not really the issue for me, frankly, even if it is for somebody else. Believe me, I've already thought about whether we're actually a priority for the owners -- if we were, wouldn't they have found the money somehow?
But I want to know if the stuff we play is ours to play or not, whether the music belongs to us or to someone else; that's the larger issue for me in all this. The nature of this stuff is that we pass the music on to each other by ear, with stories attached, with no strings other than the ones connecting us to each other. The nature of the stuff is that there's a history to it, that I can sit down and play the Maid Behind the Bar in a session just about anywhere, and just about anyone will know it and play along. That is to me the real issue of whether ASCAP or BMI can force a business owner to only allow me play my music in their establishment if they get to pay someone else for my music, even if it happens to be the same tune. (And we all know that the original composer of our kind of music isn't going to see anything from it anyway, given the whole sampling thing.)
We talk a lot about making the music "ours" -- well, if it isn't, then why bother making it? Why do you allow other musos to play your tunes without paying you for it?
I feel that my version of Lads of Laois is mine, even though we do an "homage" set to James Kelly of one of his sets -- I play them the way *I* play them, not the way he does (and not half as well, of course), but I acknowledge how much I've learned from him by playing a set of his. I don't know who wrote Lads or the Dwyer's in the middle or The Heathery Cruach, but I'm fairly sure I play the tune differently from them anyway, however they originally wrote it.
However, to ASCAP and BMI, I suspect I would be in direct violation of their licensing process if I play it in a place that might make money while I play it, because I play them together the same way Mr. Kelly did on a recording. I don't feel that's right, and if you do, that's fine, but it's also fine if I don't and decide to fight for my right to play it the way I see fit, whether you think that's foolish or whiney or what.
# Posted on January 1st 2004 by Zina Lee
Re: BMI again...
Besides which, I still feel BMI and ASCAP are too big for their britches and my fingers itch to slap em around a little. *grin*
# Posted on January 1st 2004 by Zina Lee
Re: BMI again...
Mark, The pub owner hosts the session to attract customers (as well as other players, especially if there is no free drinks policy). If the pub owner determines that the session is actually losing business and costing him/her money, you'll be booted right out the door.
Amazingly you ask, "If it's copyright stuff, then does it matter?". It does to the owners of the copyrights, and that isn't ASCAP/BMI. The owners are artists, authors and composers.
It would be impossible to have a website such as this one devoted to the discussion of music whose membership isn't filled with dreamers, and rightly so. That's a good thing.
Let's assume that *we* start a PRO for public domain music and that ASCAP/BMI actually partner up, that is, recognize the organization as legitimate. Under that scenario (which has been proposed by other members) I have two questions.
1... Who is going to run it? There are no copyrights, no properties, and no collectible fees. No $$$. Will you demand a fee just to support the organization??!! It seems we'll end up right back where we started. Who is going to pay for the inevitable new computer? Who is going to deal with the piles of email and snail mail? Who is going to be the final authority, and ultimately accountible, for determining whether or not a tune is in the public domain? And who will deal with (and pay for) legal challenges?
2...If I show up as a newcomer or visitor at your pub session which has no performing rights agreement with ASCAP/BMI and start playing Dusty Windowsills or the Donna Waltz, what will you do? Will I be told to stop? Will I have to submit a list of my tunes to be approved before I can sit in?? What if there is a tune on my list that no-one in the room is familiar with? Will you run to the computer to check the database before I can play? What if I say I wrote them?? What if the tunes are mis-titled?? What if (true) I don't know the names of all my tunes?
It all seems counter-productive. Pay the fee. Get thee to a session. Learn more tunes.
# Posted on January 1st 2004 by Tusong200
Re: BMI again...
Zina, I don't think you are foolish or whiney and I have respect for you putting as much effort into your research as you have. However you seem to be concerned about things that are not 'real world', things that may go bump in the night.
Zina.."However, to ASCAP and BMI, I suspect I would be in direct violation of their licensing process if I play it in a place that might make money while I play it, because I play them together the same way Mr. Kelly did on a recording."
You don't have any real world basis to suspect this. Firstly, *you* are not "in direct violation" of anything, the pub owner is.
Any actual copyright infringement suit would have to be initiated by James Kelly or his recording label, and would have little or nothing to do with ASCAP.
A performance rights dispute would be between the pub owner and ASCAP, and would have little or nothing to do with you since ASCAP has, by legal precedent, a recognized policy with the entertainment and hospitality industry that if a venue has live entertainment they are required to have a liscencing agreement. It wouldn't matter what you played, Happy Birthday, Stairway to Heaven, Maid Behind the Bar or Beethoven's Fifth.
# Posted on January 1st 2004 by Tusong200
Re: BMI again...
Dave,
I fully agree you can't scan a book and send it to someone, but are you saying, and help me out here, I'm not an expert on intellectual property, that I can't recite a Vic Contowski poem (one of my poetry instructors in college - he's published and it's copywrite material) on my own --- even if I own the book? I couldn't read it aloud to my friends and say - wow, that's art?
I'm not trying to be a pain here, but I see playing someone elses tune, in a non-business manner, as the same. I play stuff for my own enjoyment, or at or local slow session which is in the basement of a church with no audience or profit, for fun and it's sometimes stuff I picked-up off of CDs. Is that illegal? I can tell you I'll sit here and sing After Midnight or Cocaine to my hearts content --- my uncle wouldn't give a darn and he wrote those songs. Now if I tried to record it on my own, or perform it in a public venue, I'd probably cross the line with him, but for my own enjoyment saying you can't play something like that is nuts and completely unenforceable.
Eric
Eric
# Posted on January 1st 2004 by Jayhawk
Re: BMI again...
It would be my playing of what ASCAP or BMI would consider what they can license that would get the owner fined and therefore out of business in the case of most small establishments. The pub owner is the direct violator, yes, but if I want to play under those constraints, than it's me as the performer who has the burden of proof, not the owner, even if it's the owner who would take/is taking the consequences, not me..
Watching more and more sessions fall prey to this worldwide is hardly "bump in the night" and while I may be an idealist (and therefore often a pessimist) I am rarely a dreamer.
Sure, if the owners truly wanted to have us, they'd find the couple thousand it would take every year. And it's possible we could figure out some way to get BMI and ASCAP to figure out some reduced fee schedule (a la the $1.00 annual payment for the girl scout camps and such so they can avoid setting a precedent for the big money items), but it's still wrong to require a license on traditional music that isn't theirs to license, whether it's legal or not.
# Posted on January 1st 2004 by Zina Lee
Re: BMI again...
Here's my question - does BMI/ASCAP have separate sampling bases for folk/rock/jazz/easy-listening/country/etc and pubs/radios/tv's/highland games/fiddling contests (oh dear, I hope I haven't given BMI/ASCAP any more ideas) so that the composers we actually play stand a snowball's chance of actually getting the royalties they deserve? And then, on the difference between copyright and performance fees, if we play a version right out of O'Neill's Music of Ireland or Fiddler's Fake Book (gasp), and someone doesn't register that version with BMI/ASCAP we don't owe performance fees, right? But have we violated Oak Publications copyright? Or have we only violated their print copyright if we've physically copied their music (including photocopies, scans, abc's?)? Have we violated their print copyright if we've learned their version by ear from someone who learned it from their book? I can, in fact, see that if a pub let's a session meet in order to generate business (either from the musicians buying food and drink, others coming to listen, or to help fill an otherwise slow night with either) then the fees are due for all of the reasons folks have mentioned. But I've run into BMI/ASCAP in other than business venues - and if a group of ceilidh dancers have bought a CD to dance to in a church basement once a week why should they have to pay an additional fee every time they use it (and most of those dances are "open to the public" and often listed in the "what's to do" section of the newspaper)? But I've seen BMI insist, so I'm not giving them ideas there -
cj
# Posted on January 1st 2004 by cj
Re: BMI again...
Reading poetry to your friends would be (as I understand the law) fine.
Standing up on Poetry Night at a coffee shop and reading it aloud without permission would be (I think, again, I am not a lawyer) a violation of intellectual property.
The key here, I think, is twofold. One is the notion of where you are performing, and the other is how. For example (those who disdain all electronic instruments can wince now), if you were at the local pub, and playing on the bodyless violin, wind synthesizer, and say, a Roland electronic hand drum, and they were plugged into a mixer board that only the performers had headphones plugged into, it might qualify as performance art, but it would, I think, be a stretch to say that the tune was being performed for an audience. By the same token, if you are sitting in someone's living room, playing for your own pleasure, then it is clearly not a public performance.
But, unless you want to get into tortured definitions of "what is is", I don't think you can make a plausible case that a regular session in a pub is NOT a public performance under the law.
If you want a test case to go after BMI/ASCAP, the Richard Hayes Phillips would seem to be ideal. A session would not be, since all it would take is one mistake of playing a modern composition registered with BMI for them to be able to stand up in court and say "all of their claims about our trying to charge them for music we have no right to are a lie, here is a case where they clearly and willfully played a composition in our catalog" and you haven't got a leg to stand on.
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
This definition of "public performance" came from the ASCAP site:
A public performance is one that occurs "in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
Oh, and here is exception that might help slow- and teaching- sessions (again, from the ASCAP FAQ):
Do I need permission to perform music as part of a presentation in class or at a training seminar?
If the performance is part of face to face teaching activity at a non-profit educational institution, permission is not required. Permission is required when music is used as part of training seminars, conventions, or other commercial or business presentations.
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
Dave,
thanks for the info., but it now raises questions about busking.
I wonder what BMI/ASCAP would feel about that since it's done in public for profit, but it's not done in a legal established business. Would they charge a single person a substantial fee? What if the player said they simply don't know the names of the tunes they're playing (not meant in jest, I know lots of tunes that I don't know the proper name)? Would we actually expect any BMI/ASCAP rep. to be willing to hunt down a busker?
Akin to the above, I often practice, outside in a public city park, while on break at work. I'm not busking - just playing for myself. Sometimes people come and listen...
All the above just shows how insidious and impossible it is to police something you can learn without knowing the name of the musician who played it or the composer. Say I hear a person humming a tune to themselve at work, I like it, go home and work it out on flute, and then I play it...I could be violating the law without even knowing it.
Essentially, to me at least, the path that BMI and ASCAP represent leads to a cessation of all music playing unless you've composed your own piece or can afford, as an individual, to pay a large licensing fee...it just gets silly.
Eric
# Posted on January 1st 2004 by Jayhawk
Re: BMI again...
Eric,
The short answer is that no private performance is illegal, as far as I know.
Busking is, as far as I can tell, quite murky. A quick web search turned up the following information:
http://www.acousticguitar.com/issues/ag104/QandA104.html
And I cannot find anything on the BMI or ASCAP pages where there is even a license form for buskers.
Practicing in a park versus busking... that gets even murkier.
One source that might have information (again, courtesy of the ASCAP page) is:
VOLUNTEER LAWYERS FOR THE ARTS HEADQUARTERS:
1 East 53rd Street, 6th Floor
New York, NY 10022
Tel: (212) 319-2787 / Fax: (212) 223-4415
(212) 319-2910 Hotline
Provides free legal representation and comprehensive legal education to the arts community. Services include representation and counseling on copyright, contract, labor, real estate, nonprofit corporations, and tax exemption. Call this organization for an appropriate local contact in the US.
For that matter, I think I'll ask my attorney, and see what his opinion is. (*)
Regards,
--Dave
(*) Not nearly as spendy as it sounds. Legal Services Plan gives unlimited phone consultations in the US, for $12/month.
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
So I started digging into Title 17 (again, I am not a lawyer), which is the United States Federal Copyright law..
The definition from the ASCAP page listed above is the definition of public performance from Title 17.
Under 106(4) of Title 17, the copyright owner has exclusive right to control public performance. There is no right to control private performance, so anything you do out of the public eye is, as near as I can tell, entirely legal.
For those who care to inquire on their own, the link I used was:
http://www4.law.cornell.edu/uscode/17/index.html
Regards,
--Dave
# Posted on January 1st 2004 by Dave Weinstein
Re: BMI again...
Once again I urge reason and common sense. ASCAP/BMI do not require individual performance rights fees from buskers even though I'm sure that they would feel they are entitled to it. The reason is simple. It's not worth their time. Say you make $100 in a day's busking, they're not going to track you down for $2. How about if you busk for just an hour or two, maybe they'll come after you for a quarter or 50c???? It's not the amount of money per se but the fact that it would cost them so much to keep track of it. They really don't even know that you are there and don't really care. Once again you are in far more jeopardy from the local officials who may very well require a much more substantial street vendor's liscence, at least that's the way it is here in Chicago. Busking is illegal here unless you buy a liscence annually, and there are only a limited number of liscences available. If you are caught busking without a liscence you will usually just be told to "move on" but further infractions will get you a ticket with a large fine and possiblly a court date.
I doubt if BMI/ASCAP would actually *stop* a dance from occuring in a church basement. Not only are church and school performances (if they are church or school activities, not just rented facilities) usually exempt but how would they even know about it ahead of time?? More likely what happened is some sweet, well-intentioned, but ultimately misinformed person claimed that ASCAP/BMI wouldn't allow it without a fee and the thing was shut down. I have seen that happen and the well meaning, but ultimately mis-informed, person's fear-mongering and alarmism was the actual reason for the cancellation, not ASCAP/BMI.
# Posted on January 2nd 2004 by Tusong200
Re: BMI again...
For what it's worth, as far as I have been able to determine, playing a tune which is under copyright while busking is technically a violation (since the copyright owner has the exclusive right to public performances, and you don't have a license), but no one seems to really care. I cannot find a street performer license listed on either the BMI or ASCAP web pages.
Regards,
--Dave
# Posted on January 2nd 2004 by Dave Weinstein
Re: BMI again...
Well, I spoke to BMI.
As far as they are concerned, they only license venues, and there is no liability on the part of the performer at all. They have no interest in either going after or licensing street musicians, and as far as they are concerned (at least in this phone call) playing on the street is fine.
Regards,
--Dave
# Posted on January 5th 2004 by Dave Weinstein
Re: BMI again...
For what it's worth, I doubt very much it's "well meaning, but ultimately mis-informed, person's fear-mongering and alarmism" in that case. In most cases it has more to do with someone giving BMI/ASCAP notification as a spotter (a flyer or a poster is the usual way -- I can think of at least four occurences last year when the BMI or ASCAP rep actually read the poster or flyer to the organizer who was about to get shut down over the phone, and in fact that's how our session was shut down), as there's a bit of pay for that sort of thing.
Personally, I don't think I'm fear-mongering or alarmist. I'm reactionary. BMI & ASCAP have both said that they care and that they want to find out, and recently they've started cracking down on ever smaller and more informal venues. That's why the Girl Scouts now pay $1 a year to use ASCAP songs around the campfire at summer camps -- and that minimal, symbolic fee was only because of public pressure, ASCAP was originally determined to charge licensing fees for each and every camp. It wasn't til the Washington Post picked up the story that they started backing off, especially when their threat of suing the Girl Scouts and the camps got around.
# Posted on January 5th 2004 by Zina Lee
For what it's worth...
Here's IMRO's take on Irish traditional music copyright and arrangement (from their website):
"In the case of Irish traditional music, no copyright issues arise when the music performed is part of a body of work that has been passed down from the time that would clearly indicate that any responsible copyright term has expired, and usually the origins of the music are anonymous. Variation and ornamentation tend to be the distinguishing features of the contemporary performance of this music. Such embellishments, however, do not create a new copyright arrangement because they exist only in the performance and not, as previously indicated, in any tangible form, such as writing or a recording. In such situations, it is presumed that artistic considerations only arise if the embellishments referred to are repeated by a third party. However, should recordings be made of such performances a right is recognised in those versions of the performance. "
# Posted on January 5th 2004 by Zina Lee
Re: BMI again...
I know of one case where a "well-intentioned, misinformed" person sent a video of her students' highschool performance of a musical to the maestro as a way of saying thanks and sharing the glow of amateur pride, and the maestro's watchdog promptly slapped the school with the licsening fee and a hefty fine. Although no admission fee was charged for the one-off performance, it was advertised, and so was a "public performance."
People who earn their keep from their own intellectual property can rightly get persnickity about use of their material. But mercenaries like BMI and ASCAP predictably fall into the trap of pursuing every penny, sometimes past the point where the artists themselves might choose to look the other way (out of deference to a good cause, or with the realization that a little word-of-mouth publicity is worth more than the "lost" income).
Maybe I'm being cynical, but I wonder who's watching the watchdogs? Say you take a bunch of kids to Pizza Hurl for a birthday party. The restaurant has music playing over a sound system, so we assume they've paid their BMI fee. And then the kids launch into "Happy Birthday" as the cake is brought to the table. This tune isn't on the canned music playlist, but the pizza joint is popular among the sub-adult crowd, so it hosts maybe 6 birthday parties a week. Who keeps track of how many times the song is "performed" and makes sure the composer's heirs get their due? Or does BMI just sweep that under the carpet?
# Posted on January 5th 2004 by will harmon
Oh, and irony city....
...we generally don't flyer about our session, since it's a closed one (the place is too small to risk more than four or five musicians, or there's no place for patrons to eat!). The flyer that got us shut down was one advertising the fact that our pub was giving 10% of all profits that night to the fund for the victims of the Jamestown Overland Fire, so we thought we'd put out a tip jar for the same... :-|
# Posted on January 5th 2004 by Zina Lee