US Has Licensing Issues, Too

Subject: RE: US Has Licensing Issues, Too
From: Bettynh
Date: 08 Oct 10 - 12:06 PM

Bat Goddess and guest: can you get WUMB (U Mass Boston radio)? It's "all folk all the time." Dick Pleasants, who did Saturday morning folk on WGBH for years, hosts there frequently. It's on the net, too. Emerson radio tends to change every semester, following the tastes of the current student group. Lots of exotic music, but there's never a guarantee of folk from month to month.

Subject: RE: US Has Licensing Issues, Too
From: Bettynh
Date: 08 Oct 10 - 12:03 PM

So... at the National Storytelling Festival, John McCutcheon did a set of requests. The audience there loves John McCutcheon. He did a couple, picking them from a basket left on the stage, then picked out a paper and said "This isn't mine, but it's a great song. Unchained Melody." He hummed a bit, then sang the first few words. The audience picked it up (a southern, hymn-singing audience) and sang it with harmony. It sounded great. John waved his hands a bit, then sat at the (electric) piano and played a couple chords at the break (Only rivers flow..).
The crowd, unaccompanied, finishes the song and applauds itself uproariously. This set is being recorded for broadcast by Sirius/XM radio. John giggles during the applause "let the copyright police figure THAT one out." Sooo....if a song occurs in a concert by someone, even if he didn't sing it, does it get copyright protection?

Subject: RE: US Has Licensing Issues, Too
From: GUEST,.gargoyle
Date: 14 Jun 10 - 10:04 PM

Bat Gauno O Oh,,, OHHHH!!!!!PUSS

If there were ever a larger expanse across "the pond" ... that I am most thankfull for the colonies ... separating from their "mother country" ...it is over CR and performance issues.

Across the American continent (Canada, Mexico too) live perfomers never reach over and say, "this is mine...you can't have it...it belongs to corporate!" The same tune/song may be performed three times...by three different groups...in three different ways...over a period of 12 hours.

In 35 years - I have only heard one threat - to a small quartet -and it was bogus. No one had a loss. In the USA... If the extrapolated revenue is less than 5,000 it will NOT pay for an RB type-anal-retentive...to spend three weeks for their 3,000 cut of a spoiled kettle of clams.

Sincerely,
Gargoyle

Subject: RE: US Has Licensing Issues, Too
From: JohnInKansas
Date: 14 Jun 10 - 09:08 PM

Some couple of decades ago the TV people (actually the Football - US imitation - people) started threatening and collecting fees from all the taverns and clubs if they had a TV and might show a football game.

A court ruling, possibly limited to Kansas declared that the TV "might be just background noise" and the FB (you can read that "foot ball" or "f*g b*d) collectors were entitled to payment only if:

1. It was advertised that a specific game would be shown - i.e. "come to the bar to watch the game" and

2. No payment was required unless the TV was of "an unusual size not commonly used by home viewers.

One club owner of my acquaintance immediately bought two 57 inch TVs for his own home, and one each for the cook and the chief bartender to use at home, as "defense" against the one at the club being a "large screen" TV.

It must be noted that this was about 25 years ago (ca. 1985), when it possibly would have been cheaper to pay the extortion fees. Big TVs then took a home of their own for the rear-projection kind, or a couple of mortgage payments for the (rare) more advanced ones.

A decade later, in Washington state, it was common on "game nights" to find huge black curtains festooning the taverns, since the fee was demanded for everyone who entered, unless an "admission" was charged and those admitted "to watch the game" were sequestered where the others couldn't see the TV screens - in which case the fee was based only on those who paid to watch.

I would suspect that the cases described were not isolated to the two states named, since the extortionists agencies demanding the fees were national, if not international.

John

Subject: RE: US Has Licensing Issues, Too
From: CupOfTea
Date: 14 Jun 10 - 06:22 PM

I'm so sorry to hear that this situation isn't any better now than 15 years or so ago when I remember a big to-do over this kind of beating up on the little folks that got talked around at Folk Alliance, with reps from the companies there. At that point, Folk Alliance wasn't so overrun with singersongwriters as it got to be, and the specific bit of ruination the licensing agencies were bent on was the traditional dance community.

Now, *I* know that most of what gets played at contra, square or English Country dances in the US (and I'm betting in the UK, too at ceilis) is 95% extremely traditional. The rest is written in by folks involved in those communities, FOR those communities (I think of Bob McQuillan, Colin Hume, Fried de Metz Herman, etc...) and wouldn't get a penny from these corporate giants.

That Folk Alliance hasn't been useful as a way to deal with these large agencies for the benefit of traditional performers is one of the many reasons why, as a charter member of the organization, I belong no longer. I remember reading Elizabeth Scarborough's "The Phantom Banjo" (part of a trilogy of books where traditional music is the milieu of the stories) where the plot involved devils trying to stop people from making music. One batch were licensing agencies shutting down small venues, just as the stories above. I found this particular part WAY too creepy, as it was a bit too close to reality.

These corporate giants need some serious revision of their priorites.

Joanne in Cleveland

Subject: RE: US Has Licensing Issues, Too
From: Tootler
Date: 13 Jun 10 - 07:05 PM

It strikes me as a typical example of corporate greed. Not satisified with enough, they have to extract the last drop of possible profit, regardless of the cost.

It could backfire on them. If the fees are too steep, venues will simply stop putting on music then there will be no income. Unfortunately everyone else suffers, musicians, potential audience, as a result.

It seems to me that copyright legislation is generally in need of an overhaul.

Subject: RE: US Has Licensing Issues, Too
From: Bat Goddess
Date: 13 Jun 10 - 10:16 AM

Guest -- Remember the folk show from Emerson College (Boston) radio? Used to listen to it religiously (I'm in Nottingham, NH -- in between Portsmouth and Concord where WEVO broadcasts) until WEVO (NHPR) started up in the early '80s and couldn't get the signal any longer (except occasionally in the car).

The problem is, despite most traditional folk being in the public domain (PD), ASCAP, BMI, and SESAC shake down the venues because somebody might possibly play (even on a CD) one of the songs they control. And, if it's a song by another folk musician, that songwriter will probably never see a cent.

Linn

Subject: RE: US Has Licensing Issues, Too
From: GUEST
Date: 12 Jun 10 - 11:37 PM

I live in the Boston area (the area being referred-to in the news article) and it wasn't obvious how it applied to folk music.    Folk music is mostly either public-domain traditional music or original singer-songwriter music so I don't see how ASCAP, et al, have any relevant interest.

I go to lots of folk music events and house concerts as an audience member and there still do seem to be lots of them, but I haven't talked to the organizers about this topic.
   
The biggest problem we've had recently in the Boston area WRT folk music is that the local NPR affiliate radio station, WGBH, canceled its local folk-music program in favor of nationally syndicated news and talk-radio programming (which was already being carried by the other local NPR station).   They said they were trying to increase their station membership. I responded by terminating my membership in WGBH.

Subject: RE: US Has Licensing Issues, Too
From: Bat Goddess
Date: 12 Jun 10 - 12:12 PM

It hurts live music in small local venues -- restaurants and pubs often prefer to go with satellite radio because the fees are included in the monthly service contract. The organizations WILL attempt to charge if the venue is playing the radio over the public airwaves.

A friend with a small folk venue was just hit with an invoice from ASCAP (no prior contact, just a bill) for $1000, same as a large venue doing multiple shows per week. When he pointed out that he seats 50 and does maybe 4 shows a month, they cut the fee to $350. Venues pay it because they don't have the $$$ and legal staff to fight these big organizations.

The money doesn't go where they say it does -- it goes to support the organizations and their legal departments.

Linn

Subject: RE: US Has Licensing Issues, Too
From: jeffp
Date: 12 Jun 10 - 11:55 AM

Next thing you know, they'll be hitting up buskers for a percentage.

Subject: RE: US Has Licensing Issues, Too
From: meself
Date: 12 Jun 10 - 11:11 AM

On the positive side, it sounds like these organizations provide an awful lot of full-time employment - for non-musicians.

Subject: RE: US Has Licensing Issues, Too
From: Bat Goddess
Date: 12 Jun 10 - 10:06 AM

I certainly have no problem with composers/writers getting royalties.

That being said, I find that folk performers/song writers, etc. are almost entirely ignored by the PROs. Their sampling is extremely limited, almost never takes place on weekends when folk music shows are on the radio and they refuse to acknowledge that some venues provide entirely traditional (PD, public domain) music or the music of under- or non-sampled singer-songwriters/trad performers.

I think Harvey Reid said he once received a check for $1.87 from BMI.

The system is set up for big names and high selling genres.

Linn

Subject: RE: US Has Licensing Issues, Too
From: Howard Jones
Date: 12 Jun 10 - 07:19 AM

At least in the UK we only have PRS to contend with. I see from the article linked in the OP that venues in the US might have to get separate licences from all three US organisations.

I have no problem with composers being rewarded. The system where a venue pays a fee, rather than individual musicians having to negotiate with individual composers on every occasion, seems on the face of it sensible. However it bothers me that the PRS fees paid by venues I play in find are unlikely to find their way to the composers whose music I play.

What is unacceptable is the way these organisations can demand payment on the basis that you might play music they have an interest in. It's like a car owner being compelled to buy a rail ticket because they might use the train.

Tucked away in PRS's membership information is the small detail that if you join them as a composer you transfer all the rights in your music, including future compositions, to them to administer on your behalf. That means that a composer cannot agree with a venue or performer to waive or reduce the fee, that right lies solely with the PRS.

Subject: RE: US Has Licensing Issues, Too
From: Richard Bridge
Date: 12 Jun 10 - 04:04 AM

Yes, that is a problem in the UK too. And elsewhere.

It's actually easier to solve in the USA where source licensing is permitted as a result of the consent decrees resulting from antitrust suits against the collecting societies. It's very very hard for a composer in the UK if he is a member of the MCPS or PRS to license his work directly, unless he cancels his membership entirely. If my memory serves me the most helpful collecting societies were in Australia where they permit track-by-track derogation, and in one case a client of mine had to resign from the UK societies and rejoin the Australasian ones.

For other purposes the German collecting societies are good and using them can minimise "double dip" collection charges.

Subject: RE: US Has Licensing Issues, Too
From: Bat Goddess
Date: 11 Jun 10 - 11:34 PM

Here's the Globe article --

Pay to play
Strict enforcement of copyrights jeopardizing live music in small venues

By Joan Anderman, Globe Staff | June 9, 2010

The threatening letters started arriving in early 2009, a few months after Jim Whitney opened J Dubs Coffee, a tiny storefront coffee shop in a Manchester, N.H., strip mall. Fifteen came over a few months, right around the time Anthony Demings, owner of the Brooklyn Coffee and Tea House in Providence, was receiving his own string of letters, and Lorraine Carboni, proprietor of Somethin's Brewin' Book Cafe in Lakeville, began getting calls and then lunch hour visits from a brusque man.

"I was blown away by his demeanor,'' Carboni said. "He was rude to my staff. He was adamant about getting information. They were threatening me with lawsuits. So I did what I had to do, and ended my music program.''

Across New England, church coffeehouses, library cafes, and eateries that pass the hat to pay local musicians or open their doors to casual jam sessions are experiencing a crackdown by performance rights organizations, or PROs, which collect royalties for songwriters.

Copyright law requires that any venue where music is performed publicly, from cheerleading competitions and mortuaries to nightclubs and stadiums, have a performance license. Recorded music is subject to license fees as well. The three US-based PROs — ASCAP, BMI, and SESAC — collect the fees and distribute them to their members.

With the music industry in steep decline, PROs are ramping up their pursuit of the little guys, who acknowledge that songwriters are entitled to compensation but are angry and frustrated at what they see as unfair targeting of small businesses and nonprofits that make no money from the music they present.

Among them is Magret Gudmundsson, who until recently hosted a monthly acoustic open mike in her Middleborough cafe, Coffee Milano. "I like having it here, but we're not making any money from it and they wanted $332 a year,'' Gudmundsson said. "The town really needs something like this. They ruined it.''

Performance license fees are calculated based on a variety of factors: a venue size and seating capacity, the number of musicians who perform there, and the number of live performances per week, among others. The average fee for a small coffeehouse would be $200 to $400. But owners could be required to buy licenses from all three PROs.

The PROs have been criticized for years for their aggressive stance; in the mid-1990s ASCAP bowed to public outcry after attempting to collect licensing fees from the Girl Scouts for singing campfire songs. (They now charge the scouts a symbolic $1 a year.) But Vincent Candilora, ASCAP's senior vice president for licensing, has no sympathy for Gudmundsson and her ilk.

"They're selling coffee for four dollars and they can't afford a dollar a day for music? If they don't think it's worth it, that's their choice,'' Candilora said. "But I have to say that most people recognize that music is a value to their business. Every now and then we run into people that think, 'I'm just a small little bar; they're not going to sue me,' and that's a mistake. Frankly, once you're on our radar we can't let you go.''

ASCAP files between 250 and 300 copyright infringement lawsuits a year. BMI files 100 to 200 annually, and it's always a last resort, according to spokesman Jerry Bailey, often following years of attempts to enforce compliance with the law. BMI is currently suing the owner of a saloon in Rochester, N.H., that the company has been trying to license since 2003.

"We've made one personal visit, 59 phone calls, and sent 39 letters,'' Bailey said.

Fewer than 10 percent of copyright infringement suits go to trial, because, he said, "once a business owner gets an attorney, they find out they don't have a prayer of winning.'' Penalties in court range from $750 to $30,000 per song, and are determined by a federal judge.

Bailey said he understands how difficult it is for small business owners to survive. "But are they going to the electric company and saying, 'Times are tough; can we get some free service?' '' The number of lawsuits is on the rise, in large part because of technology. Not only do sites such as Facebook, Citysearch, and Yelp make it easier to spot potential violators, but sophisticated software simplifies the process of identifying music at its source, and determining whether it falls under copyright protection.

BMI owns the technology many cellphone users know as Shazam, a mobile app that identifies songs (the other PROs have their own version). Regional licensing agents use the app during anonymous visits to venues.

And that, said Howie Newman, a Massachusetts musician who has lost work on the local coffeehouse circuit because of all the canceled music programs, is cause for concern.

"The song 'Happy Birthday' is covered by copyright. Where do you draw the line?'' said Newman, who also runs the Music in Melrose coffeehouse at Church of the Nazarene, which features monthly performances between September and May. "We couldn't afford a thousand dollars a year [the price for licenses with all three PROs]. We don't gross that for the whole season. There needs to be some kind of amendment to the law where venues of a certain size or which generate a certain amount of revenue are exempt or have a small fee.''

To that end Louis Meyers, the executive director of Nashville-based Folk Alliance, is negotiating with the PROs to formalize a license waiver for nonprofits, nontraditional venues, and coffeehouses with a capacity of 50 or fewer. But he said talks are progressing slowly. "There's been such an incredible shrinkage in their revenue streams, because sales of music are down across the board, that all of a sudden they're much hungrier and less willing to give up any money,'' Meyers said. "Right now their collection people on the street are going after everyone.''

That includes numerous people who declined to speak on the record for fear it would draw more attention from the PROs. One proprietor of a small restaurant in Western Massachusetts, who says he's lucky if 25 people show up for live music on Tuesdays and Thursdays, has written letters to each of the PROs explaining that entertainers in his establishment play only originals and traditional folk songs, which aren't protected by copyright.

"They wrote back and said, 'I don't believe you,' '' he said. "They say that the problem is I don't know every song that's been written and someone could throw in a song that I've never heard. How do I get around that? Buy a license that covers everything.''

Most coffeehouses would be eligible for the minimum fee of $200 to $400. But even that is roughly a quarter of the profits one South Shore summer music series, at a rural education center, brings in during an entire season of concerts.

"I think the artists should be paid something for their work, but at the same time you shouldn't be hitting these coffeehouses that are volunteer-driven and lucky to be breaking even,'' said the center's executive director, who has been presenting music for 15 years and began getting letters from ASCAP a year ago. "It really feels like extortion.''

Joan Anderman can be reached at [e-mail].
© Copyright 2010 The New York Times Company

Subject: RE: US Has Licensing Issues, Too
From: Bat Goddess
Date: 11 Jun 10 - 09:57 PM

Guitarist, song writer and folk musician Harvey Reid has written extensively about this (though it was a few years ago). See
ASCAP et al and
Public Domain. Also see this essay by Richard Phillips --
Richard Philips vs BMI

Linn

Subject: RE: US Has Licensing Issues, Too
From: VirginiaTam
Date: 10 Jun 10 - 01:10 PM

hhmmm... I wonder? Could these little shops, directly approach and purchase music from musicians. Attached is a contract that the businesses have permission to play these CDs on premises. They could even offer to sell CDs for the artists to any interested punters.

Licensing outfit couldn't do anything about a mutually agreed contract between artist and business, could it?

Subject: RE: US Has Licensing Issues, Too
From: Leadfingers
Date: 10 Jun 10 - 10:41 AM

"The Venue has to prove they are NOT playing 'liable' Music"

What happened to 'Innocent until proven Guilty' ?

Its the same in UK with PRS ! But PRS do Damn All if a musician registered with them has a complaint about misuse of Registered material , unless th Writer is a BIG name ! And small tme writers regularly get their music stolen and recorded by Big Names who dont pay them a cent !

Subject: RE: US Has Licensing Issues, Too
From: Midchuck
Date: 10 Jun 10 - 10:21 AM

Yes.

And it's a hard call, what position to take. No one wants to claim that a songwriter shouldn't get paid for his (DON'T START - I'm 68 years old, I was taught in childhood that where the sex of the subject is indefinite, the masculine is construed to include both genders, and I'm not going to change until I get definite proof that the rule has officially changed. And there is no source in English with no more official power than my sixth-grade English teacher. So don't start.) work. But in practice, songwriters get little or nothing our of the payments to the rights organizations. Suits get most of it. What does go to songwriters is distributed on the basis of monitoring radio play. Most of the songs that I do, that are not my own or public domain, or covered by the parody exemption, are by people who get no radio play, or only a little on obscure stations. So if I do their songs in a small venue, they are very unlikely to realize a penny of whatever fee the venue has to pay.

Further, if the venue claims exemption on the basis that the music being performed is all originals or public domain, it should be up to the rights organization to prove that licensed material is being performed - not up to the venue to prove that it isn't.

I think an exemption should be made below a minimum audience size, to start.

Peter

Subject: US Has Licensing Issues, Too
From: Bat Goddess
Date: 10 Jun 10 - 10:03 AM

Pay to Play

Linn