Ascap Tells Artists It's Cutting Their Payments

[Coises]

from Techdirt:

We've covered many examples of how ASCAP's aggressive efforts to shut down venues from hosting up-and-coming singers is harming local musicians. And, we've also pointed out how they use a system to overpay large acts at the expense of small acts. Now it's getting even worse. Just as ASCAP is attacking groups like Creative Commons, EFF and Public Knowledge -- who help artists find more ways to take control over their own careers, it's also cutting back on payments to many of its artists

[...]

But... wait. Here's an ASCAP press release from just five months ago, claiming it was bringing in more money than ever

[...]

In other words, ASCAP appears to be taking more money away from small artists, and giving it to their biggest artists. No wonder ASCAP's Paul Williams refuses to debate Larry Lessig, claiming he'd rather focus on "fair compensation to music creators." Unless you're a smaller, less well known artist. Then ASCAP wants your share to be a little less fair. Actually, quite a bit less fair. Like 20 to 30%.

[Lazz]

I don't necessarily agree with TechDirt's rabble-rousing opinions, Randy.

They claim:

1. that ASCAP is aggressively closing venues.

2. that ASCAP overpays large acts at the expense of small acts.

3. that ASCAP is attacking groups like Creative Commons, EFF and Public Knowledge -- who “help artists find more ways to take control over their own careers”.

4. that ASCAP is cutting back on payments to many of its artists:

5. that ASCAP is bringing in more money than ever.

For #5 – bringing in money is their job, it’s what they’re supposed to do, and doing it well is good. Bringing in money by leaning on venues to pay their licence for use is a policy pursued by collection agencies in other territories. And the complaints in those territories echo #1, also.

Personally, I don’t see any problem with expecting premises to pay for their music use. It’s a simple cost of business like everything else. It’s not a huge amount, after all – contrary to what TechDirt want you to believe - and yet people still expect it to be free. The small open-mic venues don’t want to pay anything, of course. Too cheap even to pay their performers. They would sooner claim they have been forced to close and lay the blame at ASCAP’s door. I’m not convinced that view is just. I feel that TechDirt are trying to manipulate my opinion. As if they have their own agenda and objective reporting is not on it.

For point #4, ASCAP are quoted as saying “because of the fiscal climate, less money was available this year for the award program”. So at face value the cut-back applies only to some ‘award program’, while TechDirt are still keen to tell us without any further substantiation that ‘many of its artists’ are affected.

Point #3 – I remember your own chosen preference for ‘Creative Commons’ licensing – and I remember presuming you had made that choice based on ethical ideals of some sort – which is why I regret having to say this - but, to be perfectly honest, I see it all as a bit of a con.

In the UK, whenever you make any kind of purchase as a consumer the transaction falls automatically under the law of contract much as the situation whereby when you write a new song it automatically falls under the laws of copyright. For a consumer already protected by common law, this means that the only times you are offered any kind of guarantee document is when rights are being removed from you. If you tried to purchase a brand-new car in the UK, for example, and were to refuse the accompanying “guarantee” papers, they would flatly refuse to sell it to you. They don’t want you to have your full entitlement under law. It’s cheaper and better, for them, to restrict your protections.

Same with copyright. The law allows you to do whatever you choose with your work. You’re not prevented from anything and your work is protected. These other initiatives aren’t giving you anything extra that you don’t already have. Like the consumer guarantees, their only purpose is to take rights from you. So where they claim to “help artists find more ways to take control over their own careers”, you know it’s a bald-faced lie.

If I was at all attracted to conspiracy theories, I would be tempted to suspect Creative Commons, EFF and Public Knowledge of colluding in a campaign to undermine copyright.

Point #2 subsumes some very legitimate and contentious issues.

TechDirt don’t even begin to address those.

Appears not to understand what they are.

And I’m even more convinced they’re trying to manipulate my opinion by talking bollocks.

Sorry.

But there are issues at point #2.

.

[Coises]

I don't necessarily agree with TechDirt's rabble-rousing opinions, Randy.

Techdirt does have a definite point of view regarding copyright, patent, trademark and similar legal concepts. They make no attempt to present opposing views themselves, though such views appear quite regularly in the comments. I haven’t found them to fabricate, but it’s probably fair to say they are not “objective” in a journalist’s sense.

Having read that blog for some years now, I will say that I don’t believe their position is as extreme as it might first appear. They are not opposed to copyright, patent, etc. in principle, but they do believe it has expanded far beyond its appropriate boundaries, whether seen according to the US Constitution (empowering Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”) or in light of economic theory. Techdirt is convinced that copyright and patent have become a means of protecting specific, traditional business models and well-entrenched interests that depend on them in the face of evidence that the extent of these protections goes far beyond what actually promotes creative progress, and in fact actively hampers it.

And that’s as much as I’ll try to speak for them... they do that quite loquaciously themselves.

So where they claim to “help artists find more ways to take control over their own careers”, you know it’s a bald-faced lie.

In fairness to Creative Commons, the Electronic Frontier Foundation and Public Knowledge, I believe it is Techdirt’s claim, not theirs, that they “help artists find more ways to take control over their own careers.”

Creative Commons is concerned with providing tools that make it easier to grant certain permissions regarding ones own work in a way that can be easily, clearly and immediately understood by others. Of course, Creative Commons licenses can’t give the artist any legal capacities, privileges or rights he or she doesn’t have already. It’s the pragmatic, social aspect — giving a designation that’s recognizable as identifying a “safe to (re-)use” work — that is the contribution Creative Commons hopes to make. (I say “hopes” because I don’t believe it’s yet clear how well this will work — whether Creative Commons licenses will reach the level of usefulness of, say, the GNU General Public License in the free and open source software world. I think there’s a serious possibility that they screwed up by defining too many different licenses.)

As far as I know, EFF and Public Knowledge are more concerned with consumers’ rights and general political and civil rights. They’re not against creators (one of the founding members of EFF is John Perry Barlow, probably best known as a lyricist who collaborated with Peter Weir on many Grateful Dead songs), but their focus in not on the specific interests of creators.

I remember your own chosen preference for ‘Creative Commons’ licensing – and I remember presuming you had made that choice based on ethical ideals of some sort – which is why I regret having to say this - but, to be perfectly honest, I see it all as a bit of a con.

My reasons for choosing a Creative Commons license are perhaps somewhat “ethical” but mostly pragmatic.

I’m not a performer, and I don’t expect to become one; but the sort of songs I write are far more often sung by their authors than by others. When I consider the entire chain of fantastic events that would have to happen for me to ever make enough money from one of my songs to be worth even being concerned about... it’s a lottery ticket. The much more likely thing is that outside of a few friends and folks I run into in places like Songstuff, my music will never be heard at all.

So I’m far more concerned with reducing the barriers that might stop someone who performs, makes videos, whatever, from using my music and getting it a little more distribution than I am about the insignificant chance that I might have a golden goose in that pile of chicken-scratches.

I considered, more than once, writing my own license; but in addition to the legal pitfalls that undoubtedly exist, coming from the software programming world I have some idea already how troublesome for “downstream” users that can be. In my opinion, no one has yet defined the perfect “free” — in the words of the free software movement, that’s “free as in speech, not (necessarily) free as in beer” — license for software, music or anything else that falls under copyright law. It quickly becomes evident, though, that each different license multiplies the difficulty for new creators trying to build on what has already been accomplished. Whatever I tried to write, if I didn’t just plain screw up the legalities entirely, I’d almost certainly create some inadvertent pitfall that would deter future potential uses of my work.

Instead, just a few days ago I relaxed the license on my music and changed it to a simple Creative Commons Attribution License, which should make things very clear for almost anyone who wants to use my work. The difficulties creators (and/or publishers) face in clearing rights can be so daunting that without even considering the costs of licenses and royalties themselves, just the process of obtaining the necessary rights may preclude the use of existing works that fall under copyright for many purposes. In my opinion, that helps no one.

Now, should some of my work happen to gain sufficient exposure to bring my songwriting talents to the attention of folks who would have no problem paying to clear rights — something I think is unlikely, but at least more likely because my now unknown work can be freely used — then the next work I do might be released with a few more strings attached... or maybe not. That’s something I will only be able to work out when and if it happens.

[Roflcopter]

Personally, I don’t see any problem with expecting premises to pay for their music use. It’s a simple cost of business like everything else. It’s not a huge amount, after all – contrary to what TechDirt want you to believe - and yet people still expect it to be free. The small open-mic venues don’t want to pay anything, of course. Too cheap even to pay their performers. They would sooner claim they have been forced to close and lay the blame at ASCAP’s door. I’m not convinced that view is just. I feel that TechDirt are trying to manipulate my opinion. As if they have their own agenda and objective reporting is not on it.

I take it that's in response to:

ASCAP and BMI have been aggressively targeting venues that hold open mic nights, and demanding they pay huge fees. Many venues have given up and simply stopped allowing any musicians to play at all. In fact, one made every musician sign a waiver that they would only play original songs, and ASCAP told him it didn't matter because there was no way to know if the singers were really avoiding copyrighted music, so he still needed to pay up for a license.

Sorry, but if I let people sign waivers, ASCAP should not be at liberty to bluntly ignore that. They may *assume* people play covers anyway, but until that's established, they cannot simply dictate law.

[Lazz]

Sorry, but if I let people sign waivers, ASCAP should not be at liberty to bluntly ignore that. They may *assume* people play covers anyway, but until that's established, they cannot simply dictate law.

Sorry Rob, I'm not quite clear what you're saying here.

Help me make sense of it, please.

.

[Lazz]

Techdirt does have a definite point of view regarding copyright, patent, trademark and similar legal concepts. They make no attempt to present opposing views themselves, though such views appear quite regularly in the comments. I haven’t found them to fabricate, but it’s probably fair to say they are not “objective” in a journalist’s sense.

I had never been aware of them at all prior to your post and my only reading of their stuff is through your links.

But I did find them to fabricate, enough to signal questions about credibility.

.

[Roflcopter]

Sorry Rob, I'm not quite clear what you're saying here.

Help me make sense of it, please.

.

Venue owners let artists who are going to perform, sign a waiver so the venue owner doesn't have to pay the license fees for copyrighted music - the artists promise they won't play any copyrighted music.

Ascap says **** you, pay anyway - we all know they are still going to play copyrighted music.

Is a bit like a cop fining you for speeding when you step into your car, no? We all know you are going to exceed the speed limit, now don't we?

In my book, that's not legit. Probably also according to Dutch law, come to think of it.

[Lazz]

Venue owners let artists who are going to perform, sign a waiver so the venue owner doesn't have to pay the license fees for copyrighted music - the artists promise they won't play any copyrighted music.

Ascap says **** you, pay anyway - we all know they are still going to play copyrighted music.

Is a bit like a cop fining you for speeding when you step into your car, no? We all know you are going to exceed the speed limit, now don't we?

In my book, that's not legit. Probably also according to Dutch law, come to think of it.

Thanks.

Speaking personally, payment evasion may always be my own preferred option where there's a chance of getting away with it - like getting away with speeding when there's no cop around. But maybe a better analogy would be the requirement, speeding or not, to have a valid license - plus the fact that a waiver wouldn't save you there either.

Personal opinions aside, the law is the law, and we just have to deal with it one way or another.

The law requires a licence for the use of music, and we know that it will be copyrighted music because all music is under copyright law, so that can't be what the waiver is for. I think the argument was that they would be playing only their own original music and not 'covers' - and yet copyright still applies to both categories.

Any waiver would have to come from ASCAP, not from the performers, who might not even be ASCAP members.

If they were ASCAP members, and the venue had paid it's licence, and the artists filed their performance repertoire appropriately, then they would eventually receive some share of monies collected.

That's how it works - theoretically - and I do have legitimate questions about how PROs' distribution formulae eventually shake out in our direction - but, given the long struggle to put our protections in place together with the constant battle to maintain them, the constant pressure to undermine those rights sometimes smells akin to some kind of mealy-mouthed quisling union-busting cloaked in a seductively innocent ideology of 'free'.

Why aren't these people working with ASCAP to make something happen?

Why don't the venues just get a licence?

It is hard for me to imagine that Dutch law would be any different from any other EU member.

.

[Lazz]

I considered, more than once, writing my own license; but in addition to the legal pitfalls that undoubtedly exist, coming from the software programming world I have some idea already how troublesome for “downstream” users that can be. In my opinion, no one has yet defined the perfect “free” — in the words of the free software movement, that’s “free as in speech, not (necessarily) free as in beer” — license for software, music or anything else that falls under copyright law. It quickly becomes evident, though, that each different license multiplies the difficulty for new creators trying to build on what has already been accomplished. Whatever I tried to write, if I didn’t just plain screw up the legalities entirely, I’d almost certainly create some inadvertent pitfall that would deter future potential uses of my work.

I'm sure are easily capable of writing your own licence.

Synchronisation licences might offer a good model.

Some for prospective projects are usually short and sweet and recognise the fact that funding may never appear.

If and when it does, of course, that's when payment details are finalised - but, until then, use can be effectively 'free'.

[Coises]

The law requires a licence for the use of music, and we know that it will be copyrighted music because all music is under copyright law, so that can't be what the waiver is for. I think the argument was that they would be playing only their own original music and not 'covers' - and yet copyright still applies to both categories.

Any waiver would have to come from ASCAP, not from the performers, who might not even be ASCAP members.

See this letter from the Assistant General Counsel to the United States’ Register of Copyrights regarding a similar situation with BMI.

In the United States, each performance rights organization is empowered to collect songwriting and publishing royalties on behalf of its members. There is no law that gives them the right to collect royalties for all music — each copyright holder (writer, publisher, arranger, etc.) has the option to enter into a contract with one of these agencies. Their rights are derivative of the copyright holder’s rights. (I think the situation is different in many other countries, and that a single performance rights organization is sometimes given the right to collect all performance royalties defined by statute, with the copyright holders having no choice in the matter — not even the choice to waive their own royalties.)

I am not a member of any performance rights organization. Had I not already designated my songs as royalty-free, performance royalties in the United States would be due directly to me.

Licenses from performance rights organizations are paid by the venue, not the performers (I believe this is a matter of how the contracts are written, not something required by law); what the waivers must have intended to accomplish was to place any liability for performance royalties on the performers by showing that they had contracted to perform only songs that did not require performance rights organization licenses. That might have stood up in court, but the cost of fighting an ASCAP lawsuit would undoubtedly have been much greater than the cost of paying the extortion license fee.

So, yes, a regime in which a musician who isn’t a member of a performance rights organization loses a gig because his employers were intimidated by a performance rights organization does make some of us who think the old way of doing business is overdue to perish a little pissed. In this context, you are correct about my Creative Commons License being pointless — should my songs be performed in public anywhere, ASCAP and BMI will probably still collect and (after their fashion) distribute royalties on these royalty-free works.

[Roflcopter]

Thanks.

Speaking personally, payment evasion may always be my own preferred option where there's a chance of getting away with it - like getting away with speeding when there's no cop around. But maybe a better analogy would be the requirement, speeding or not, to have a valid license - plus the fact that a waiver wouldn't save you there either.

Personal opinions aside, the law is the law, and we just have to deal with it one way or another.

The law requires a licence for the use of music, and we know that it will be copyrighted music because all music is under copyright law, so that can't be what the waiver is for. I think the argument was that they would be playing only their own original music and not 'covers' - and yet copyright still applies to both categories.

Any waiver would have to come from ASCAP, not from the performers, who might not even be ASCAP members.

If they were ASCAP members, and the venue had paid it's licence, and the artists filed their performance repertoire appropriately, then they would eventually receive some share of monies collected.

That's how it works - theoretically - and I do have legitimate questions about how PROs' distribution formulae eventually shake out in our direction - but, given the long struggle to put our protections in place together with the constant battle to maintain them, the constant pressure to undermine those rights sometimes smells akin to some kind of mealy-mouthed quisling union-busting cloaked in a seductively innocent ideology of 'free'.

Why aren't these people working with ASCAP to make something happen?

Why don't the venues just get a licence?

It is hard for me to imagine that Dutch law would be any different from any other EU member.

.

My point was that they were playing their own original music, not copyrighted by others - as I think you were pretty much aware. The waiver was about not playing other people's copyrighted music, and that's in no way the same thing as needing a license for driving.

In the EU, Ascap would have no right to require the musicians to register their original material with Ascap before being able to perform it in public. They would also have no business to require any fees from anyone on the basis that they 'probably' would violate that promise. The license fees, IIRC were for playing music copyrighted by others. Hence the whole idea of waivers, to avoid those fees - why pay if you don't do what the license is all about in the first place, eh?

In the EU we have a slightly different situation than in the US, as far as obligatory 'union' memberships goes, I think that's the whole basis of this misunderstanding. In our view, this kind of 'union' is closer to the mob, than anything else.

In Europe we also have unions, also quite powerful, but their role is more important during negotiatons about working conditions, and presenting yourself as a group in case of disputes - not some obligatory membership without which you have no right to work.

[Lazz]

Great document links, Randy.

Thanks.

I didn't think there was any question licences are issued to premises.

But can it really be true that there is no legal requirement for premises to get one ?

Hard for me to believe.

Why on earth would anyone be worrying about ASCAP lawsuits if the licence has no legal basis?

Must be some misunderstanding.

I think the situation is different in many other countries, and that a single performance rights organization is sometimes given the right to collect all performance royalties defined by statute, with the copyright holders having no choice in the matter — not even the choice to waive their own royalties.

Yes, other territories have one single agency.

But rights holders are under no obligation to join.

And those of us who do join can still choose to waive royalties – generally mechanicals.

Performance royalties for useage is where licences for premises come in though,

And even there, thanks to the heroic persistence and resolve of Richard Phillips, the documents you linked to make clear that because, in his case, where the premises make no use of recorded music or is otherwise exempt, where he is the only live performer of music at the premises, and where the repertoire is either owned by him with no rights transferred to BMI or made up of traditional public domain works which have nothing to do with BMI either ….. then in his case they don’t even need a waiver because the Assistant General Counsel to the US Copyright Office says clearly that BMI’s presumed entitlement never existed in the first place.

That seems to make sense to me – I hope I got it right.

And that precedent must mean something – a secure argument at least that, for those guys whose circumstances meet the same criteria as laid out by the Assistant General Counsel, they have legal right to tell BMI to go forth and multiply without compromising the integrity of copyright.

With other performance premises, however, the circumstances may be very different.

They usually will be.

So why don’t they just get a licence?

It’s not as if we’re talking loads of money.

For the type of small venues I understand to be involved in these incidents, the cost can’t be much more than ten bucks a week.

a regime in which a musician who isn’t a member of a performance rights organization loses a gig because his employers were intimidated by a performance rights organization does make some of us who think the old way of doing business is overdue to perish a little pissed.

First, I don’t see what his membership status has to do with it.

Second, when you say ‘the old way of doing business is overdue to perish’ it prompts me to consider that maybe you’re conflating issues of composers’ copyright with the evils of the big bad record company scenarios – largely long dead anyway – and that maybe your understanding about what’s really going on for musicians and composers is incomplete..

Thirdly, when you say it makes you a little pissed, it starts to do the same to me, but for different reasons.

The professional organizations, collection agencies, PROs, which represent the interests of their membership of ordinary composers and musicians, have their efforts under attack from a lot of directions right now. It’s a real fight for our rights on many fronts concurrently.

You, on the other hand, sanguine and philosophical with your expectations, choose to concern yourself less with rights protection and embrace creative commons as a more appropriate alternative, and seem to have found a path that suits you just fine with no need for any involvement in these rights-fights.

Still, it confuses me that a putative songwriter, albeit one with your talents, irrespective of any contented amateur status, could take sides against the rights and interests of other songwriters.

Richard Phillip's narrative (great and useful documents you provided - thanks) describes tactics he wants to name as 'extortion' – you enjoyed using the same word yourself – and I know that Prometheus (have you met?) has other stories about petty abuses of bureaucratic licensing power in Scotland that he feels passionately about. There are two things I know about this: one- that what makes a good story isn’t always the truth; two- that I’d have to be stupid to believe any organisation was perfect and couldn’t afford to learn more about graciousness and service. But whatever valid criticisms exist about ASCAP or PRS or whichever agency – and I have my own, remember – that is no reason to go selling the rights of their membership down the river by joining the attack on our means of collective representation.

I’m unhappy if we should see our interests as divided on this, but the issues are pretty crucial for me and other songwriters, so I’m even more unhappy thinking you may have picked the wrong side.

Could easily be viewed as back-stabbing.

And it's not even your fight.

I hope you understand those of us who are actually involved might get a little pissed as a result.

.

[Lazz]

My point was that they were playing their own original music, not copyrighted by others - as I think you were pretty much aware. The waiver was about not playing other people's copyrighted music, and that's in no way the same thing as needing a license for driving.

An analogy isn’t supposed to be the same thing – just similar enough to be useful.

And if my analogy failed to communicate itself successfully. then it was crap.

But your analogy about speeding didn’t work too well for me either.

What I was hoping and trying to express is that premises needing a licence to use music was like you having a licence to drive a car, and that playing original music or not was akin to speeding or not, and that neither of them has any bearing whatsoever on need to have a licence in the first place.

That’s all.

In the EU we have a slightly different situation than in the US

I thought you might have been aware that I am European.

I know how it works in the EU.

In our view, this kind of 'union' is closer to the mob, than anything else.

Yup. Historically, in the US, the mob has been closely enough entwined with some unions to be pretty much one and the same. Things appear to have changed a lot though since the old times depicted in “On The Waterfront”. These days, in my mind, as an outsider here, widespread anti-union sentiment is part of the legacy from that corrupt period. There seems no great respect given to concepts of individual rights and protections as they are regarded in Europe, though. There is ideology instead based on ‘freedoms’ which are opposed to any such controls or restraints.

Very largely, the union landscape in North America has changed – although I don’t see that old mythic mafia model ever being an appropriate or productive tool for looking at the way rights organizations work.

In Europe we also have unions, also quite powerful, but their role is more important during negotiatons about working conditions, and presenting yourself as a group in case of disputes - not some obligatory membership without which you have no right to work.

I think that European model works much better in expressing the ways a PRO represents us as a group and negotiates terms and conditions on our behalf. And I’m not certain of your intention, but if you do actually mean to suggest they operate through obligatory membership without which you have no right to work, then that is a complete misrepresentation.

In the EU, Ascap would have no right to require the musicians to register their original material with Ascap before being able to perform it in public.

Are you saying you believe that, in the US, ASCAP does have that right ?

They would also have no business to require any fees from anyone on the basis that they 'probably' would violate that promise. The license fees, IIRC were for playing music copyrighted by others. Hence the whole idea of waivers, to avoid those fees - why pay if you don't do what the license is all about in the first place, eh?

For all I know, you’ve probably got loads of dynamite ideas about how to organise a much better, fairer, more effective system, wouldn't surprise me at all. It could all be so different if you had the power to create and enforce your own rules. But at the moment, there are laws and rules already in place whatever we might think of them. And those are the facts we have to deal with in reality.

They don’t charge fees on the basis of some chance that a promise would be violated. That’s just plain silly. The licence is for using music. That it is not copyrighted by others has nothing to do with anything. When I play a gig, I am doing music copyrighted by myself. If I am lucky enough to be working a place where they pay their licence, I am glad to be able to complete my PRO form, get it signed, send it in, and look forward to getting paid my composer’s due. If another artist is performing music copyrighted by myself in similarly licensed premises, I have to hope they do the same paperwork properly on my behalf. And if any of us performs work written by someone else, we are expected to fill in the same forms on their behalf so those composers eventually get paid too. The system works reciprocally and pretty much the same in Europe and North America. It doesn’t actually matter whether we think another method might be preferable, that’s how the system operates.

You can talk about how it should be, and those ideas might be commendable and sound, but we still have to deal with what is.

In the US now, it seems clear, according to the document links posted by Coises, that there are conditions under which premises would have no need to a licence for music.

Whether that principle would work the same in other jurisdictions is yet untested and unresolved.

.

[Coises]

But can it really be true that there is no legal requirement for premises to get one ?

Hard for me to believe.

Why on earth would anyone be worrying about ASCAP lawsuits if the licence has no legal basis?

Must be some misunderstanding.

Under United States copyright law, there is a legal requirement to license a musical work from the copyright holder for any public performance. There is no legal requirement to acquire a license to perform music (generically), as opposed to the licenses required for individual musical works that are under copyright.

ASCAP, BMI and SESAC members assign their rights to license public performances, to collect performance royalties and to pursue legal remedies for failure to acquire performance licenses to the performance rights organization they join.

In practice, that means most venues — which cannot reasonably expect to verify what persons or organizations hold the rights to each and every song that might be performed there — need licenses from all three organizations. If an artist performs a song written by someone who is not a member of any of those organizations and has not offered a license for such a performance, there is still a violation of copyright law... but since it’s virtually impossible for an individual songwriter to police performances of his or her work personally, no one worries about that; as a practical matter (but not a legal one), if you’re not a member of a performance rights organization, you’re not going to get paid for performances.

Apparently, the way liability works in the United States, even when a venue does not directly control which songs are performed, and even if contracts with the performers specify that the performers must not perform any works for which the performer does not have performance rights, the venue is still liable for copyright infringement should an unlicensed performance occur there... and the fines can be staggering. One of the things performance rights organizations do is send observers to venues who don’t pay hoping to catch an unauthorized performance of a song registered with that organization. They only need one to have a case which can be ruinous to a small business owner.

So, suppose I play piano Saturday nights at a little restaurant. I tell the owner that I play only my own compositions, so he tells ASCAP, BMI and SESAC he doesn’t need a license. While I’m playing and improvising, I wander off into a melody that I didn’t even realize is an old Burt Bacharach tune, and an ASCAP representative makes note of this. (How he proves it without violating copyright law by making an unauthorized recording of my performance, I don’t know, but I presume they have their ways.) Now this little restaurant faces a $30,000 lawsuit.

The combination of the way liability law works, the huge fines allowed by law, and nature of “David and Goliath” lawsuits (usually David runs out of money to keep paying lawyers long before he has his day in court) paves the way for tactics reminiscent of a protection racket. The best I can gather is that for many decades performance rights organizations were more-or-less reasonable; but in the last fifteen years or so, they’ve been getting more and more and more absurd.

[Roflcopter]

“On The Waterfront”

Do you really think it ended in 1954? Maybe check Frank Zappa's stance on unions - he was one of the few musicians that had his entire band on a payroll, and he was

(scathing even, and that was the 80's) - although he also admitted that unchecked Big Business would be ultimately worse.

Maybe also check the lyrics to "Rudy Wants To Buy Yez A Drink" - he still depicts the union guy as a mobster.

[Coises]

When I play a gig, I am doing music copyrighted by myself. If I am lucky enough to be working a place where they pay their licence, I am glad to be able to complete my PRO form, get it signed, send it in, and look forward to getting paid my composer’s due. If another artist is performing music copyrighted by myself in similarly licensed premises, I have to hope they do the same paperwork properly on my behalf. And if any of us performs work written by someone else, we are expected to fill in the same forms on their behalf so those composers eventually get paid too. The system works reciprocally and pretty much the same in Europe and North America.

As far as I can tell, it doesn’t work that way in the United States. From ASCAP’s document “The ASCAP Payment System” (page 8, General Licensees & Special Monetary Awards):

Of course, it would be impractical to monitor all performances in bars, clubs, restaurants and the like. ASCAP licenses tens of

thousands of music users, such as these, that do not fall into the ASCAP surveys. The monies collected from these establishments

goes into a “general” licensing fund and is paid out to members on the basis of feature performances on radio and all

surveyed performances on television.

ASCAP completely ignores what is actually played in restaurants, bars and other small venues; they take the money collected from those venues and add it to the distributions made on the basis of radio and television airplay. I don’t know if BMI and SESAC do the same.

Based on your remarks, I have to guess that this system might be peculiar to the United States.

[Coises]

First, I don’t see what his membership status has to do with it.

This is perhaps an artifact of the “American system.” As I explained in another reply, there is no “license to host a performance of music (in general)” in the United States; there are licenses to perform specific works that fall under copyright. The collection societies gain the legal position to negotiate a license with a venue contingent on music which they represent being played there. The practicalities of the situation, though, mean that even when a venue intends that no music covered by ASCAP, BMI or SESAC will be played there, if it plays any music, it is taking a substantial risk if it does not pay them anyway, even though they are not legally entitled to the payment... unless one of the venue’s performers makes a “mistake.”

Second, when you say ‘the old way of doing business is overdue to perish’ it prompts me to consider that maybe you’re conflating issues of composers’ copyright with the evils of the big bad record company scenarios – largely long dead anyway – and that maybe your understanding about what’s really going on for musicians and composers is incomplete.

I have no doubt that my understanding is incomplete. That’s part of why I post something like this here: offering an opinion and then listening to what people say in response is one good way to learn the limits of ones knowledge.

I’m not confusing performance rights organizations with record companies, though. I just think the former are treading essentially the same path as the latter: faced with the fear of diminishing significance, they’re grasping at every possible straw to fight for their own relevance, acting as if every petty legal advantage they can press they must press, taking a short-sighted view of what’s monetarily beneficial for (their already most successful and richest) members without regard to how their choices might affect the long-term future of the creation and performance of music... and in doing so, they’re alienating themselves from music fans — without whom all the rest of the music scene would be rather pointless.

But whatever valid criticisms exist about ASCAP or PRS or whichever agency – and I have my own, remember – that is no reason to go selling the rights of their membership down the river by joining the attack on our means of collective representation.

I’m unhappy if we should see our interests as divided on this, but the issues are pretty crucial for me and other songwriters, so I’m even more unhappy thinking you may have picked the wrong side.

Could easily be viewed as back-stabbing.

And it's not even your fight.

I hope you understand those of us who are actually involved might get a little pissed as a result.

But it is my fight.

We’re all consumers of music; when simple, pleasurable uses of music that are very unlikely to have any significant impact on the commercial value of a work are rendered impractical because of overly complex, overly broad and overly aggressive copyright, we all lose.

At least in the United States, as performance rights organizations push harder on small venues that were formerly ignored, the result appears to be that many of the places where the newest performers (and writers) get their start and develop their craft are finding that they can no longer afford to operate as they did. This, again, is an all-around loss. Some little hole-in-the-wall’s open mic night isn’t taking significant revenue away from more sophisticated venues — and, given ASCAP distribution formulas, if they do manage to pay, the revenues won’t go to the artists whose work is being performed, anyway. That open mic is providing a place for new artists to learn, though, and killing that is a loss for everyone.

And there’s the fact, as pointed out in earlier replies, that this system renders my choice to license my songs royalty-free essentially meaningless for use in clubs, bars, and so forth — ironically, the only place it probably would count would be if one of my works were performed on a major tour: one of the few public performance cases where I would have preferred (were it practical) to retain the right to collect royalties, as the need to pay them would be unlikely to impose any impediment to the use of my music in that context.

It’s also true that everyone loses if capable songwriters have to reduce the time and effort they devote to their craft because they can no longer pay their rent without taking a job sweeping up at the local burger joint. Arguing that copyright, licensing, royalties, etc. have gone too far isn’t the same as arguing that every method by which artists can be paid should be scrapped in its entirety (not that we all agree on the details).

Really, though, I see the formation of “sides” as one of the biggest problems. Hollywood and the RIAA, in particular, have been treating the general public as a horde of would-be criminals for decades, and that adversarial stance seems to have spread to the performance rights organizations and to many artists and creators as well. As I read it, that’s been TechDirt’s stance all along: if you see your fans as the enemies from whom you must protect yourself, you have a serious business model problem, and sooner or later, it’s probably going to bite you in the ass.

If it’s not too personal, I would be interested in hearing a bit about how your membership in a performance rights organization has worked for you. I imagine it could be instructive.

[Lazz]

What a legal & ethical cluster-f**k !

I don't see any legal & ethical cluster-f**k - delightful as it sounds - I see a bounty of sound-bite bullshit.

Still very juicy.

The last time rights issues were hot gossip here reflected the hot-gossip in the rest of the big and small media. The story back then was about negotiations for a new agreement between YouTube and the UK's Performing Rights Society. And the media narrative was played out in classic good-guy/bad-guy stereotypes.

YouTube were the good guys who generously deliver a feast of music and video direct to the devices of choice amongst a market sector reared on 'free' (as in 'beer'). PRS were the bad guys, the party-poopers, the joy-trashers, who were threatening an end to the party of innocents unless they were given money.

The reality was something else. But we never let facts get in the way of a good story, do we? People love a good story. And this one was a great story. This one mined a rich vein of emotional populist sentiment because the outcome looked to hit people where it really hurt - right in the home computer - ouch - right in that 'free beer' pocket.

Battles have spilled out of the boardroom and onto our front pages before, of course.

That's where the spin can help you win.

Labour disputes, for example, are generally reported in a style which presents management as making "offers" while unions make "demands". Such clever and subtle emotional charge to language spells that same old dependable subtext for good-guy/bad-guy. And Google/YouTube, lords of the new universe, are even slicker at the game. No wonder PRS fell right over from the hammering.

The constant battle for public opinion is a minefield of 'diss'-information.

I'm not paranoid: I'm just suspicious of good-guy/bad-guy packages when they're punted at me.

In this current instance, the good guys are “up and coming singers” and “local musicians”.

Hey !!! That’s us – right?

ASCAP, meanwhile, is “aggressive”, “attacking”, and “refuses to debate”. They not only cheat their own membership by exploiting small acts (that’s us, too, isn’t it?) to overpay the big guys, and by cutting back on member payments while raking-in more than ever, but their general administration tactics are on a par the mafia.

No doubt these must be the bad guys

Don’t you just hate ‘em already ?

At least, that’s the story they want us to hear – so much is clear. And I know there’s always an appetite for stories that confirm our established or up-coming prejudices. But for me, faced with cheap attempts to manipulate my sympathies, telling me what I am supposed to be thinking and feeling, and breezing past basic fact-checking and substantiation on the way, my personal bullshit-detector tells me I’m being lied to.

To me, it’s yet another scuffle in the general diffuse-media campaign of gradual background erosion working to undermine public sympathy for the simple notion that an individual should have rights over their own work. That’s the real story. One day, if it hasn’t been done already, someone will write it. Maybe “Legal & Ethical Cluster-F**k” should be in the title somewhyere.

Apart from this missing commentary on the big battle, my most significant major concerns regarding PROs are to do with distribution mechanisms and ways to achieve greater proportionality and fairness.

There’s a story there too

But in the meantime we’ll stick to good-guy/bad-guy.

Just like the Wrestling.

I don't have any real skin-in-the-game.

It ain’t so bad.

Just the friendly-fire gets to be a pain.

.

[Lazz]

Do you really think it ended in 1954?

C'mon, Rob.

I said the landscape had changed.

There's absolutely no need to stoop to misrepresentation.

You're better than that.

Are you really saying it is the same as in '54 ?

Do you really expect me to accept a one-sided picture from Zappa 25 years ago plus the words to a song as proof of that ?

I just can't take that seriously.

Sorry.

.

[Roflcopter]

There's absolutely no need to stoop to misrepresentation.

Why not? It's one of your favourites, apart from feigned misapprehension and being purposely obtuse... or getting verbal, even .... read back maybe.

Agency shops still exist to this day. Just because it's maybe YOUR union, doesn't make them sacrosanct, Lazz, or elevates one particular union or unions in general above criticism.

/out