Having done a bit of research, and even communicated with ASCAP, my understanding is that venues cannot transfer liability to performers; regardless of any such contract, the liability still rests with the venue, or at least ASCAP has been successful so far in arguing that case legally because they license venues not performers.

Technically speaking IF every performer in the venue only performs traditional, public domain songs, or their own original material, or songs with the express and written permission of the songwriter, then the venue should not need an ASCAP license. However this is very difficult for the venue to enforce. And if one performer sings one ASCAP song, even unknowingly, and ASCAP catches them, the venue is liable for hefty fines. This risk is enough for most venues to shut down once ASCAP targets them. I think that ASCAP is illegally bullying when they threaten venues with a suit just because they have live music -- as if the venue should have to prove they did NOT play an ASCAP song or be presumed guilty.

I've been thinking it's now feasible for songwriters to get fair compensation from live venues on a per-play basis like they do now for radio etc. Venues could digitally record during all performances; software could identify matches to copyrighted material and report matches to ASCAP/BMI/etc, who in turn could invoice just for the actual royalties due for the actual material played (instead of a blanket license). In turn ASCAP and BMI should pay those royalties directly to the actual songwriters whose songs were played (instead of distributing fees to the statistically most played songwriters). There should be an easy way for venues to challenge claims if the song is really PD, and if no ASCAP songs are played, the venue won't owe any royalties.

Just thinking.