Paying for performance rights...

Donny Hinson · From: Glen Burnie, Md. U.S.A.

According to an article in the Baltimore Sunpaper, a small town in Maryland called Manchester (Pop. 3,329) has received notification of a "debt due" from A.S.C.A.P.. The town must pay an annual "performance fee" of $255 to have music at their monthly summer concerts. These are "park type" affairs, with no admission fees. (People just bring their lawn chairs and blankets, and listen to music under the stars.) One night a month, a band plays...and people just sit and listen. Whether or not the concerts will continue is now undecided.

That the small town's affair has drawn attention of the giant organization has the populus bewildered. This isn't exactly Las Vegas, and though the fee is modest (even with their small budget), people are wondering exactly where the money is going. A town of under 50,000 would pay a $255 annual fee, and a city with half a million would pay $3,163 for a similar license. (The charge for the performance license is based on the population, and not on attendance at the affairs.)

When you think of all the cities and small towns (probably over 100 in maryland alone) in the country that will be forced to contribute, it's easy to see that the revenue from all of them will mount up to a significant amount of cash. But the nagging question seems to be...where will it go? And how do they decide who gets more, Tommy Dorsey, or Paul McCartney? Will any proceeds ever trickle down to the lesser-known writers? How much do writers actually lose when a small band performs a song at a free concert? (Do they really lose anything at all, since it might instigate someone actually buying a CD containing that song in the future?) Interesting questions, aren't they?

At any rate, it seems the "Pandora's Box" has finally been opened, justice has been served, and all the struggling, destitute songwriters out there (that have been fighting for this vindication) will soon be much better off.

Or will they?

It will be interesting to see how much their station in life has improved in another few years.

Ron Page · From: Penn Yan, NY USA

And is ASCAP the only organization claiming such entitlement from these cities and towns?

Seems rather arbitrary and I wonder what authorizes ASCAP to do this and who sets the rates.

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HagFan

Donny Hinson · From: Glen Burnie, Md. U.S.A.

According to the article, B.M.I. will probably also be asking for a "piece of the pie", and the two organizations (ASCAP and BMI) control about 98% of copyrighted music. The promoters (and not the performers) are responsible for the payment of the fees.

Smiley Roberts · From: Hendersonville,Tn. 37075

There was a barber shop,here in Hendersonville,(pop.40,000+)a couple o' years ago. It was a "one-chair" operation. He had his table radio tuned to a local station,in the shop. "Ass of Cap" informed him that he had to pay "licensing fees". He told them that he wouldn't. They took him to court. He won the "battle" but, unfortunately,lost the war,because,the money it cost him to fight,drained his finances,& he had to close his barber shop.
Back,when ascap was first founded,you couldn't clear a Country song through them because,they felt that they were above "Hillbilly" music. So,BMI,(Broadcast Music Inc.) was formed. They cleared Country Music. Ascap saw how they were doin' & decided to "jump on the Country Music bandwagon". If I were a songwriter,I would NEVER publish through ascap.

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Donny Hinson · From: Glen Burnie, Md. U.S.A.

Good point, Smiley. Also, there is the point that, with the "computer age" we are now in, is there really any need for someone to use these companies to "publish" their songs? After all, isn't anyone who posts a song (or anything else) on the internet actually "publishing", themselves? There was a time when you had to go to these companies to do research on a particular song. The information just wasn't available anywhere else. Now, it's public record (on the internet). If I want to find out about a particular song, it's much easier to just search the net than it is to navigate the ASCAP and BMI websites.

Leon Grizzard · From: Austin, Texas, USA

ASCAP and BMI are both performing rights organizations, and their function is to collect money for the public performances of copyrighted works. These performance rights are one of the biggest income sources for hit tunes, and not much of a source for those are not hits. The way it works is that the organizations charge annual fees for the unrestricted use of compositions they represent - you get the whole catalog. They collect from bars, restaurants, etc, but most of the money comes from radio other broadcast media. The money is paid out based upon surveys of radio station play logs, and some surveying of major performance venues. That means, basically, to get any of the money, your song has to be played on the radio, and the more it is played, the more you get. The money, incidently, is sent one half to the publisher, and one half directly to the writer.

There is, I guess, some sort of rough parity of proportion between a song being played on the radio and being played publicly, at least in those places where cover bands flourish, so the fees collected from towns and resaurants help make up the pot of money that goes to composers.

Bill Hatcher · From: Atlanta Ga. USA

OK so think about this:

The city has a concert.
The people have paid money for the park,
they pay money for the police to supervise the event,they pay for the cars to get in and drive to the park, they pay for the gasoline to drive the cars, they pay for the food they bring to the park or buy at the event, they pay for the musicians to play, but the main thing that brings it all together--the MUSIC......
nobody wants to pay for it.

ASCAP and BMI collects royalties and pays the writers and the people who own the copyrights to the music.
It is called a business. No matter what you think about these payments, these people deserve to be compensated for their music that is used.

Tony Prior · From: Charlotte NC

I think the issue is ..why now..after decades..what is the point of going to a small community and shutting down the music if they don't pay the $200..

IF you listen to the radio in your car do you pay ?

Whats the difference if you play the radio at the Barber Shop or a CD..they are both public performances aren't they ?

I believe the entire NAPSTER deal has taken everyone to a new edge..maybe rightfully so..but somewhere someone with some common sense has to come to the table.

If you have a private pool party and invite 200 people..and play the radio..whats the difference between that and the Barber shop?

I feel there should be some sort of window applied..if a city has regular festivals that draws tens of thousands thru the year ,ok..set a base cover-all fee..but a small town like the one I live in where they have once a month free concerts at the green for about 50 to 100 people..they should be under the line....

What if you sing Happy Birthday at a party..do you have to pay the family that owns the rights ? Afterall, it is a copyrighted published song..

Bringing the line into our living rooms is not the answer..it just makes the issue worse..at least thats the way I see it..

It forces the two sides further apart...

And yes..I have a few self published songs which I would consider an honor if someone decided to play in public..

tp

Joe Law · From: Leslie ,GA

And it dosen't stop with music. Our church ocassionally shows video's to the congregation on Sunday nights. These are legitimately bought videos from our association headquarters. We got word that we have to pay some outfit in California a license ($100) to show these videos.This just dosen't seem fair or maybe I'm missing something.

JB Arnold · From: Longmont,Co,USA (deceased)

The barber shop thing surprises me. The small town concert does not. If the promoters have not paid the rights orgs, then the city needs to. I'm sure everyone would like to have a "line" where it was free. Problem is, where do you draw it and then how many lawsuits do you defend over where it was drawn? Copyrights must be vigorously defended or they Lapse. Now the barber shop, I don't know-the radio has already paid the rights-and the radio is not part of the barbers "thing", so I think that's BS. No rights due there.

It's a lot like Disney. No matter how much ill will and bad press it generates when Disney goes after some small Mom and Pop setup who might use some kind of symbol that MIGHT resemble the mouse, or mouse ears, or if mickey turns up ANYWHERE without permission, Disney has to sue, and I mean be pure evil about it, or the next guy will accuse them of not defending their trademark and start selling Mickey everything and get away with it. You let some kids start a "Mickey playhouse" is skokie, and leave them alone, and next there'll be some guy with a Micky Strip Club, and maybe you can stop him and maybe you can't.

The small town thing would normally fly below the radar tho. My guess is that someone (rejected band or band member?) got mad and tipped ascap-which then forces their hand.

But legally, yeah, you got to pay it.

JB

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Donny Hinson · From: Glen Burnie, Md. U.S.A.

Yes, it's ridiculous.

Yes, it's reaching the point of absurdity.

Yes, I echo all of Tony's thoughts exactly. No, I'm not sorry for feeling that way. I don't believe a songwriter/publisher should be paid every time a song is sung or performed. People have been freely writing songs for thousands of years. People have been freely performing that (other people's) music for the same thousands of years. Now, all of a sudden, that's all out the window??? "Big Brother" is here! Yes folks, 1984...only 19 years late (per Mr. Orwell).

In reality, I think it's more a case of the songriters/publishers, music industry in general, getting greedy than it is one of them finally "getting what they deserve".

I fully expect to walk by my neighbor's flower garden tomorrow, and then have him send me a bill for "looking at and smelling" the fruits of his labors. After all, didn't I "use and enjoy" something it took him time and thought to create? Is that so different than writing a song?

Think about it.

Tom Olson · From: Spokane, WA

Donny, I'll take a shot at trying to answer your question:

First, some background stuff that probably you and most people know already:

When a writer writes a song, he/she automatically has a copyright in that song. He/she can register the song at the copyright office, but they don't have to. The main thing registering at the copyright office will do is allow you to get statutory damages/royalties etc.

Same deal with a sound recording copyright. Whoever records a song (regardless of whether they wrote it) automatically has a copyright in that recording. The recording artist can register at the copyright office or choose not to.

An artist can do anything they want with their copyright -- they can sell it outright, license it, sit on it, etc. etc. If the artist sells their copyright, then that artist is no longer entitled to any royalties from that song -- instead, the new owner of the copyright is the one who gets the royalties.

If the artist chooses to hold on to their copyright, they can either choose to enforce the copyright on their own, or they can hire an agent to do it for them. Most choose the latter. ASCAP and BMI are agents who enforce copyrights for owners.

I don't know what the fee structure is for the services such agents provide, but they make their money by charging the copyright owners a fee to enforce their copyrights.

Now to the questions:

1. first question: where does it go? The money collected in enforcement of a copyright goes to the copyright owner -- whoever that may be. It may be the original artist, or it may be some publishing company that bought the copyright. You really never know who owns what copyright unless you look it up at the copyright office.

2. second question: how do they decide who gets more? In a situation like the one you've outlined, the amount each copyright owner gets is stipulated by law in the applicable United States Code (I think it's title 17, but I can't remember). Alternatively, the law provides for copyright owners and those who want to use their music to negotiate and agree to whatever rates they want. But, in a case like this where somebody simply plays the music and the royalties are collected later, it's almost definitely done in accorance with the statutory rates.

3. third question: will any proceeds ever trickle down to the lesser-known writers? That depends on what the lesser-known writer did with his/her copyright. If that lesser-known writer happened to be starving or living on the street at the time they wrote that hit song, then most likely they've long since sold any interst they had in the copyright for some cold, hard cash -- in which case they don't get NUTTIN'!! Instead, the big, fat cat who bought the copyright is now rolling in dough because he was in the right place at the right time.

On the other hand, if that lesser-known writer held on to the copyright and hired some agent (like ASCAP) to enforce the copyright, then that lesser-known writer is getting just as much for his/her copyright as the fat cat is getting for his copyright under the statutory rates (all else being equal).

4. fourth question: how much do writers actually lose when a small band performs a song at a free concert? (Do they really lose anything at all, since it might instigate someone actually buying a CD containing that song in the future?) [I'm assuming that you're referring to cases in which the small band doesn't pay the royalty fee]

in my humble opinion, the answer is that the writer(assuming the writer is the copyright owner) doesn't really lose anything -- but the writer also doesn't make anything. The way I think most copyright owners and agents look at the situation is: if they don't enforce the copyrights at all, they won't make a red cent -- nuttin'!!!! But if they choose to enforce their copyrights, they do it equally across the board. In other words, they don't just go after the big time operators, they enforce the copyright equally without regard to any extraneous factors like whether it's a big town, a small town, a barber shop or whatever. This means that any public performance of the song, regardless of venue, location, by whom, etc. etc., is subject to the statutory fee or whatever fee they may have negotiated with someone.

Also, it's my opinion that if the small town or small band, or whomever, decides they don't want to perform a given song or songs because they don't want to pay the royalty fee will not have a noticable affect on how many CD's of the music is sold. Most likely, if the song is popular enough that the band or town considered playing it in the first place, the CD will sell regardless.

Maybe what you're asking is that if a little known song is played publicly, that may generate interest in the song which may result in CD sales. That's possible, but I think most copyright owners and agents don't look at it that way because things get too complicated -- like how do you decide when to enforce the copyright and when not to? And, how do you really figure out if such public performance really does result in increased CD sales?

I think the copyright owners and agents approach the situation with the mentality of "just enforce the copyright and don't worry about unknowns."

--edit-- regarding the question of whether this type of vigorous enforcement is new: I can't say for sure, but I don't think this type of thing is new. At least from what I've heard, this type of thing has been going on since the beginning.

Regarding the question of whether it's morally right or wrong to make someone pay for listening to music: I think the realy question is, "is it right to benefit from the use of someone elses property without paying for it?" I know this is all pretty much a grey area, but artists should be entitled to get paid for their work and creativity. This is what the copyright laws are for.

[This message was edited by Tom Olson on 09 September 2003 at 08:05 PM.]

Tony Prior · From: Charlotte NC

It's ludicrous..

they may own the song and the copyrights.
but they don't own the ability for me to listen to it..

GEESH!!

The whole point of music is for people to listen to it..good, bad ,whatever..sing along, dance..whatever !

Where are we going with this ?

It's about $$$ for a few and thats it.

An untapped resource that some con-artist Lawywer thought up. Where can we get more money without actually making or selling anything..?

This road will , if it stays travelled, end up with every public venue closed for LIVE music and many public outdoor festivals and events shut down. Maybe not this year, maybe not next year..but it is possible in the forseeable future.

We will be playing our Steel Guitars for our families ( or Cats and Dogs) in our living rooms with BIAB, that is until we get served papers to pay up or stop playing copyrighted songs..

After reading the thread about the NYC download lawsuits from the RIAA I am pretty much at a loss here.

So when everyone stops playing LIVE music and all the festivals and venues are shut down, is it expected that CD sales will go up ?

You pay $80 to go see Kid Rock at the Verizon Theater..he gets paid to do the concert and the theater pays him again for the songs he sings via copyright royalties ? Makes no sense to me..and he stinks!!

We're way past 1984..bring back George Orwell...he had no idea..

tp

Donny Hinson · From: Glen Burnie, Md. U.S.A.

Bill Crook · From: Goodlettsville, TN , Spending my kid's inheritance

I've said it once and I'll say it again....
Whatever enters my house is mine. If it be be via radio,T.V.,internet,MP3,CD,DVD,cable,etc,etc,it don't make any difference. By the time I get acces to it,it has been paid for many times over. The music industry should take notice of what the Movie folks have learned,put good stuff out there at a price the public is willin' to pay and then,everybodys happy !!
I wish the RIAA and the Gaylords of the music world would be forced into bankrupcy and then they would see just how many people would rush to their side to help them. (Hey, RIAA, Don't hold your breath while waiting.)

One of the greatest (IMO) screw-ups by money grubbin' pricks was the flap with the jingle "Happy Birthday to You " thing. That has to be the most stupid thing ever done. Dose the music industry really think that the public should pay a fee every time they want to hear a song or etc,etc ?? Boy,the RIAA really don't get it yet, do they ?? It's over !! The days of stiffin' the public and the song writers,artist,is gone.

Even by todays kids,the music is sub-standard and mostly trash. They ain't buying the stuff and as the internet can/will give them access to what they want,Why pay $18.00 to $$22.00 for a CD that has 99.9% trash. (Pay attention here RIAA).....

May the RIAA and other money grubbers go the way of Sadam and his kingdom !!

Jim Cohen · From: Philadelphia, PA

Bill, tell us how you really feel. Don't hold back, brother.

Ron Page · From: Penn Yan, NY USA

They recording industry may have the law on their side but they sure don't have the public on their side. Here's and example of their poor PR from right off the top of Drudge's site today...

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HagFan

Oops! I see we already have this story covered in a separate thread.

[This message was edited by Ron Page on 10 September 2003 at 06:48 AM.]

Tony Prior · From: Charlotte NC

Ok....RIAA won..who gets the money ?

The Lawyers for the RIAA or the writers...
Who won ?

Do ya think the Lawyers are gonna split the cash..lets see 6 months time ='s ..right..$2000.

What a bargain

The right PR would have been to drop the suit with a handslap...

But I guess in the end ..everyone will be afraid to get sued and will stop file sharing..but what will they do next year when CD sales plumet again..?? Take legal action against the retail stores for not displaying them correctly or in the right bin ?

Bobby Lee · From: Cloverdale, California, USA

If I were in a position where ASCAP/BMI was billing me for performance rights, I would include a song list with the payment. On that songlist would be several of my own compositions, which are registered with ASCAP. Then I'd wait for the check.

Do you think I would receive a check from ASCAP? To date, I have received none. I think it's a scam when they collect money and then distribute it to songwriters whose songs weren't played.

I play in a band that does 100% original material. We play venues that pay ASCAP. We never get ASCAP checks in the mail. The royalty money is going to popular songwriters whose songs aren't on our playlist. If it goes to anyone at all...

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Donny Hinson · From: Glen Burnie, Md. U.S.A.

Yup, that's what I thought. Thanks for that information, Bob! Now, maybe more people will see this crap for what it is. A scam, pure and simple.

Pat Burns · From: Branchville, N.J. USA

..the whole thing with the town being presented with a bill can be summarized in a few words...."Opportunistic Lawyers, Greed"...

..they're taking advantage of the media attention to the Kazaa situation, and they're going to piggyback on it to get some bucks while the getting's good, it's that simple...

...it's the same as the bottomfeeding TV advertising personal injury lawyers who want to make sure you get all the money you deserve...they're scum...

Ken Lang · From: Simi Valley, Ca

The debate and problems with the performance rights people have been going on for decades. I recall a place in the late 60's where ASCAP, SESAC and BMI all came in and demanded the lions share for the payments. The club owner threw them all out and said when they resolve who gets what percentage, then he would talk to them. They never came back.

I've been a member of BMI for several years. While it's nice to get a check from BMI, the hatred and anger they cause to common folk is not worth the hassle. They will destroy the very music scene that makes them a profit.

I would suggest that any performance rights organization who would demand their fair share have a representative at each and every venue where live music is played. They would have to record in a ledger each song and which ones fall under their blanket. That would mean at least 3 reps at every hot dog roast and party in the USA.

I don't want my BMI membership sullied by a bunch of greedy asshole suit types who couldn't pick their nose with a National thumbpick.

Jim Cohen · From: Philadelphia, PA

One of my clearest memories as a child is that I loved to sing Bobby Rydell songs around the house, especially "Volare" and "Forget Him". I remember one day asking my mom if I had to pay someone in order for me to sing "Volare" around the house. She laughed and said, "No silly. You don't have to pay anybody just to sing a song around the house!"

Mama lied.

Tony Prior · From: Charlotte NC

Jim....

Momma lied ?

But did she do 20 years in prison serving life without parole ?

??
tp

Jussi Huhtakangas · From: Helsinki, Finland

No Jim, your mama did not lie! I think many of you guys are missing the point here about copyright laws; the keyword is "public performing" ( use of music outside private circle of friends or family ). While copyright laws probably are slightly different in each country, I believe the main principals are the same. I'm a member ( not a very creative one though

)of the Finnish organization called TEOSTO, equivalent to ASCAP, BMI, etc. I'll try to translate in English what is said in their brochyre about this: " a performance ( live music or mechanic ) is public and under copyright laws, if in principal anyone can listen to it or if there is a large amount of listeners ( whatever then is a large amount ). Performing music i.e. on radio, TV, concerts, clubs is public and requires a permission by TEOSTO. It's not relevant whether the concert or event is free or charged cover. Also, all background music in public rooms and facilities is public performing and therefore i.e. stores, shops, restaurants, barbershops, gyms, etc. need a permission for performing music. Performing music in a private home or within family events, such as weddings, funerals, birthday parties or other private events within group of friends is NOT public performing and does not require a permission." The permission here of course means that there is a fee for it. I don't know exactly how the fee is determined, but I assume that for example, the clubs and bars pay accordingly their seating capacity. I do know, that the clubs are required to maintain a list and file of what pieces of music is played and deliver that list to TEOSTO, which in turn accounts the money to copyright holders. The bands and performers performing live music in a bar should also fill in a list of the songs they play, BUT it's not the band who pays the fee and it's not even their responsibility to fill in the list, but the club owner or the organizer of the event. Taking care and overseeing that this always happens is of course impossible and in many cases does not happen, and the club owners leave the list unfilled or fees unpaid. Therefore the copyright owner will not get his/her share.
A copyright owner is anyone, who has paid for a membership of TEOSTO and maintains a list of his work to TEOSTO. In other words, if I write a new song, I have to register it to the files by filling in a report about the song ( title, genre of music, composer, arranger, lyric writer, publisher, etc. ) The fee for a membership is for lifetime + 70 years of the member's passing.
So I guess to answer Donny's original question of who gets the money, it's the copyright owners to the songs on the list of music that was performed, that the town should have provided to BMI and ASCAP. At least, that's the way it works here. The share is equal, so if there was one Lennon/MacCartney song and one Justin Trevino song, they both get equal amounts. Note, that this is not my opinion or about somebody's principals, it is the copyright laws and copyright organizations work according to it and national and international agreements and contracts. In Finland the law has existed over 70 years, I believe in US it's even lot older. If a copyright law leads to ridiculous lawsuits, is another thing then. But I also think, that it's ridiculous and wrong, that a bar owner refuses to pay for the copyrights of the music he uses to help his business. Most likely he loses more money on broken beer glasses, than what the fee for copyrights would be.
Laws of course are created in congresses, so if it seems to be an unfair or ridiculous law, you better start writing to your congressman

[This message was edited by Jussi Huhtakangas on 11 September 2003 at 03:34 AM.]

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