Performing songs- ascap hassling - help

Subject: Performing songs- ascap hassling - help
From: GUEST,Claire
Date: 27 Oct 15 - 11:50 AM

Hi Mudcat friends,
Can anyone help me with this issue. Yet another venue option is going down because they cannot afford ascap licensing. We can play if we sign a form saying we will pay the fines should the venue receive one. Can anyone answer these questions? Thank you, thank you for any help you can offer.

If a song dates back before 1923, but was on a record after that, is it in or out of the public domain?

If we recorded the song and got permission from the author for the recording, can we perform it? Do we need additional permissions?

Do we need to carry around a book showing any permissions we have to use the material?

Is there any recourse with ASCAP or other music licensing organizations to proove your material is traditional or original?

If you arrangement is your own and it is "traditional" material with no clear author, can we feel safe that it is public domain?

Has anybody had success on this issue and how did you go about it?

THNKS!

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,.gargoyle
Date: 27 Oct 15 - 07:42 PM

I do not understand it.

The FOX agency has been "putting the screws" to a trio of friends who perform live "Sinatra" stuff. They go for the "deep pockets" of the venue owner.

Even my dentist office was hit for playing "I Tunes" mix from a rotating que of staff selections.

Sincerely,
Gargoyle

Each staff member contributed a selection of their pick for the the day....while the dentst is an astounding artist in porecelin...he submited himself to the musical staffs of his staff.

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,leeneia
Date: 27 Oct 15 - 10:03 PM

For a start:

ASCAP has a data base where you can look up a song and see if it's theirs.

copyright.gov has a clear explanation of copyright laws for you

Many songs seem traditional but are modern and are copyrighted. You can't assume that because no composer is known, that there is none.
=========
Gargoyle, I doubt if Sinatra ever recorded anything public domain. Why be surprised?

Thanks for bringing up that the Fox agency is another place to check out.

Subject: RE: Performing songs- ascap hassling - help
From: GUEST
Date: 28 Oct 15 - 11:53 AM

I don't see how checking with the ASCAP database does any good, since I would have to check with all the other licensing companies to make sure they don't have rights to it either. Plus, it is really unclear how a folk song that is old (published prior to 1923, which is public domain according to several authorities) could be owned by a licensing group.   

As an example, I went on the ASCAP website and looked up She Moved through the Fair. This song has origins as far back as the 1600's and has been in many books published before 1923. However, ASCAP shows that they have variable amounts of ownership for 40 versions by various artists. Do they only own those versions, so if you play that artist doing that song, you have to pay their licensing fees. More to the point, do they now own that song even when I do it, causing my venue to pay, should I sing it? What about if I play it, but don't sing the words? What if I sing it but put in instrumental break - creating my own arrangement?

I realize that no composer does not mean that they are traditional, but I am talking about tunes and songs published by O'Neil in 1907 - are those safe?

Thanks, Claire

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,Claire
Date: 29 Oct 15 - 01:16 AM

just bumping this up to see if anyone has thoughts on my last post - thanks!

Subject: RE: Performing songs- ascap hassling - help
From: Joe Offer
Date: 29 Oct 15 - 01:16 AM

Hi, Claire - you're pretty safe with songs published before 1923, with a few exceptions. Performers and arrangers can claim copyright on post-1923 recordings and arrangements of earlier songs. When we did the Rise Again songbook, we had to pay rights for Carter Family songs, even if they were written by somebody else before 1923.

If a venue owner has received a threatening letter from ASCAP, he/she would be unlikely to want to bother with the hassle of fighting ASCAP. So, another venue bites the dust or pays the fee. There ought to be a better way.

-Joe-

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,leeneia
Date: 29 Oct 15 - 11:23 AM

Well, heck. A few months ago, I went to copyright.gov site, and I found a page that stated clearly that a person cannot claim copyright to a PD song itself merely by making a new arrangement of it. He can copyright his own arrangement, but he cannot copyright the song itself.

Now I can't find that page for you. It was too good to last, I guess.

Think about it. Suppose Joseph Oldtimer writes a hit song in 1888. If his copyright doesn't expire someday, the govt would be responsible for protecting the fractional rights of numerous descendents. Doesn't make sense, and no govt does it.

But if the govt allows Billy Bluegrass to come along 80 years later and copyright it all over again just because he put in some new chords, we are back where we started - spending public money for years and years.

And if Harriet Heartthrob comes along and records it with a pretty flute harmony part, she has no right to copyright the old tune. She can copyright the flute part, but the govt is done protecting that old tune.

I realize that doesn't answer all your questions. For example, how does one find out how old an old song really is? But it should help with all the bullies who claim copyrights to which they are not entitled. And that includes Hal Leonard, Inc.

ASCAP, BMI and SESAC are nothing but a kind of collection agency. They are supposed to collect royalties for legitimate performances of a member's own work.

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,leeneia
Date: 29 Oct 15 - 11:29 AM

I see that ASCAP's data base isn't much help for people like us. For example, it lists many recordings of Greensleeves, which we all know is PD.

Now, if I owned a radio station, and I played Norman Luboff's recording of 'Greensleeves,' then it might help me to look it up in ASCAP's data base to see where to send the royalty. But what I am paying for is Luboff's own, original contribution to that recording.

ASCAP is not going to tell me that the tune itself is PD.

Subject: RE: Performing songs- ascap hassling - help
From: GUEST
Date: 29 Oct 15 - 12:45 PM

Ok, so I think that I am ok with songs first published before 1923 (if I can figure that out). The song itself should be PD and they are all our own arrangements.

However, do you think if I have written permission to perform a song, from the actual modern-day author of a tune or song, that I am ok playing it? Does any body think that is a flawed rule of thumb?

Claire

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,Stim
Date: 29 Oct 15 - 01:44 PM

You're problem is not with really with ASCAP, it is with the venue, who are trying to get you to agree to assume their liability, which would not ordinarily be your own.

The thing is, if there is a question, dealing with it would fall on you, and could end up costing you more money than you stand to make, even if the licensing organization's claim against you turns out not to have merit--

Win or lose, you'll have attorney's fees, say an initial $250 for the initial consultation, and $250-500 per hour after that. Even if it's just a couple phone calls and a letter, the meter can run up pretty fast.

Subject: RE: Performing songs- ascap hassling - help
From: Joe Offer
Date: 29 Oct 15 - 02:25 PM

Well, I can't blame the venue, and I can't blame performers who are performing songs not controlled by ASCAP. It's ASCAP that has the reputation for bullying.

Same with Carter Family songs. Some of their songs were written or substantially revised by A.P. Carter, but many were not. "Little Moses" is a good example. I found sheet music dated 1845 with an arrangement that sounds just like the Carter Family recording. But you'll have a hard time publishing or recording that song without paying royalties to Peer International Corporation (Ralph Peer's company). Why? Because Peer International is known to be litigious, and publishers don't want to mess with them.

My hat is off to people like Richard Matteson who have researched the origins of Carter Family songs and provided proof that many are in the public domain, despite the bullying of Peer International. See Richie's work in this thread (click). And Hal Leonard didn't cave in to all the Peer International claims when we published the Rise Again songbook. They listed a number of them as in the public domain, "arrangement copyright Hal Leonard, 2015."

-Joe-

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,Stim
Date: 29 Oct 15 - 02:58 PM

What you say about ASCAP is pretty much true, but I don't think it's even remotely fair for a venue to try to assign their liability to the performers. As you have illustrated, there are other ways to deal with this.

Subject: RE: Performing songs- ascap hassling - help
From: meself
Date: 29 Oct 15 - 06:00 PM

Written permission from the songwriter is unlikely to be of any value to you when dealing with these outfits. My brother once tried, in person and on the spot, to stop a licensing agency shakedown of someone performing one of his compositions; he found out he had no say in the matter.

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,Claire
Date: 29 Oct 15 - 06:49 PM

Hi all,
"meself" that is really interesting about your brother. That is what I was wondering about the permission thing. I know it is unfair of the venue to do this, but on the other hand we still get to play. I think we will just need to stick to public domain material.... I clearly need to build that bit of my repertoire. :)

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,.gargoyle
Date: 30 Oct 15 - 11:03 AM

This is an article about one venue's nightmare.

It includes a link to ASCAP's budget.

www.presstelegram.com/business/20150828/licensing-group-sues-long-beachs-gaslamp-in-beef-over-music-rights

Sincerely,
Gargoyle

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,.gargoyle
Date: 30 Oct 15 - 11:24 AM

You might find the free "Public Search" at the top of their page interesting.

www.songfile.com/

Sincerely,
Gargoyle

The legal mumbo gumbo to access the search is classic Harry Fox Agency.

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,Stim
Date: 30 Oct 15 - 12:02 PM

Here is a quote from Garg's link that applies directly to this issue, Claire:

"Federal copyright law does not apply to cover bands, said ASCAP spokeswoman Cathy Halgas Nevins, only to businesses profiting from the music."

So even according to ASCAP, you have no liability here--look at the dollar amounts mentioned in the article:

"ASCAP is seeking $750 to $30,000 per infringement, the complaint said."

If that band had signed the agreement that your dude is trying to get you to sign, they would have been responsible for that amount of money(or for proving, possibly in court, that they didn't infringe on copyright--which is where legal fees come in).

Yes, you will get to play, but there is a chance that you'll have to pay, as well.

Subject: RE: Performing songs- ascap hassling - help
From: Jack Campin
Date: 30 Oct 15 - 08:02 PM

Claire, you are probably getting the magic 1923 from a US source. It's irrelevant outside the US, and I think you're in the UK?

I can't think of a comparable folk example, but a near-worst case in classical music is Richard Strauss's Don Juan, written in 1888. Strauss died in 1949 so it won't be PD until 2019, by the now-universal rule that copyright in a published work persists until 70 years after the writer's death.

Subject: RE: Performing songs- ascap hassling - help
From: maeve
Date: 31 Oct 15 - 06:40 PM

Jack- Good point- but I believe this Claire is in the USA.

Claire?

Subject: RE: Performing songs- ascap hassling - help
From: Pamela R
Date: 01 Nov 15 - 02:17 PM

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.

Subject: RE: Performing songs- ascap hassling - help
From: GUEST
Date: 01 Nov 15 - 02:21 PM

Yes, I am in the U.S... Tucson to be exact (a hot bed of traditional music ascap infringement). I have a friend who is an ascap member, but has purposefully not registered various songs, including one she wrote for us, with ascap. She is also a lawyer and a law professor in fact. She is going to check with ascap and make sure we can play it. I will let you know.   

We were very careful on Friday and we talked about where we got material on stage, so I think we are ok. However it limits the songs that I can sing, so I will be doing more research and learning pre-23 songs for a while.

Thanks for all the great resources.

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,oggie
Date: 01 Nov 15 - 03:27 PM

Out of interest what kind of money are we talking about for an ASCAP licence?

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,leeneia
Date: 02 Nov 15 - 11:45 AM

Yes, Pamela R., you have touched on a sore point. Folkies can tell the venue that they will only do PD songs, but somebody will come along and break that promise, I guarantee.

I used to be an officer in a small non-profit that brought big bands to town, most from Scotland and Ireland. No way could we afford ASCAP and BMI licenses. We put it in every contract that music should be PD, and the bands consistently and blythely ignored it.

There will always be somebody who doesn't know about licensing. Or has just had a few beers, is feeling defiant, and performs a copyright work anyway.
===========
I was also an officer in a dulcimer club which wanted to publish a book of hymns. Despite my insistence that the hymns be PD, members of fundamentalist groups tried to slip their personal, copyrighted favorites past me. (They were not officers, so any trouble would not affect them.)

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,DTM
Date: 02 Nov 15 - 12:24 PM

While I have no problems with musicians & composers getting their just rewards, sometimes it seems like (at grass roots level) there's an 11th Commandment ... "Thou Shalt Not Have Fun".

Subject: RE: Performing songs- ascap hassling - help
From: GUEST
Date: 02 Nov 15 - 12:48 PM


There will always be somebody who doesn't know about licensing. Or has just had a few beers, is feeling defiant, and performs a copyright work anyway.
Or just doesn't know. I have seen a piece introduced as "traditional" when the composer is actually in the room.

Subject: RE: Performing songs- ascap hassling - help
From: GUEST,.gargoyle
Date: 02 Nov 15 - 08:03 PM

If you check the ASCAP "motherboard" you will discover locations that they are hiring … and there are many.

Sincerely,
Gargoyle

A common prison phrase says,"snitches get stiches." I doubt any folk fall on either sise.