I was asked by a close friend today to chime in on a discussion about the fees that are charged to venues by ASCAP and BMI if they have live shows with cover songs. It is an issue that I have dealt with first hand and have been on both sides of the coin. I am going to copy the question and my response onto here and let you decide how you feel. The names have been redacted.
On 10/19/11, XXXXXX wrote:
I have a friend back in Ohio that has made his living playing blues music and one of the venues he plays at is being sued by BMI music for playing both recorded and live music without paying royalties. Seems pretty crazy to me but as of today they have basically shut down any music being played at this place and for god’s sake this is a friggin winery.
Does this look like a place setup to steal music royalties?
<insert innocuous looking venue here>
Executive Summary From XXX:
XXXX will end up settling out of court (hopefully) They owe for 6 years of non payment on their license ($6,400.00 per year) PLUS $150,000.00 per song for 12 songs under the BMI umbrella that were played by bands!!!! Huge fines and lawsuit. Totally scam. Will be interesting to see what the final net result is. Scary that entities can so wantonly strong arm money from honest, hard working business owners.
He also found his ASCAP card from 2004 and his now wondering where his airplay royalties are coming from his songs on the radio such as “<song I’ve never heard of>” and everybody’s favorite “<why would you name a song that?>”
Today XXXX cancelled any and all live gigs for fear of additional fines, not word on how they are handling recorded music. Are you guys playing any BMI songs this weekend?????
On Oct 19, 2011, YYYYYY wrote:
While it is pretty shitty to do stuff like that, if a bar is charging at the door, they’re using the music as a revenue stream and should at least get a stern talking to. This kind of stuff is over the top though and they’re only doing it to make a point. Point taken: never give money to BMI again.
adding Tom to the thread, so we can get a professional’s point of view….
Here is my response
There is a culture in our country of everything should be free, except for what you are selling. It is amazingly pervasive. As an artist you make your living by creating things with your mind… a songwriter is selling ideas or thought patterns is one way to think about it. It is impossible to regulate the sale of ideas but there needs to be some financial transaction or the “business” of music cannot happen. At some point in our society we decided that music does have a value, it is a service or product that can be monetized, and we created governing bodies to ensure a fair trade of the product. We created groups whos purpose it is to make sure that these intangible things, these ideas and thought patterns, maintain a cash value. That is the job of ASCAP,BMI ,SESAC, and the RIAA… They are imperfect bureaucratic systems to say the least, but they have a monumental task of trying to convince a population of people, who think that everything should be free except what they are selling, that these songs and music have an intrinsic and real monetary value.
I made a living for a number of years by playing other artist’s songs in bars, it never crossed my mind once in that time that I was stealing… it didn’t feel wrong, I was making people happy by giving them what they wanted. I had no idea if the bar paid ASCAP, or BMI, or anyone… it wasn’t even a blip on my radar. I started to learn about ASCAP when I became a member as a songwriter and publisher by putting out records. I really didn’t get very much money from them at all, and it seemed like more of a formality, but then again no one was using my music on TV, and only small local radio stations were carrying it. My first interaction with an ASCAP official was when I was running a bar in North Carolina. They came to the owners and said that if they were going to have live cover bands and play music over the speakers in the bar they would have to pay a yearly fee of about $1,000. (BMI came with the same request shortly afterwards.) When the guy told me this I launched into him with demands for my royalties that I hadn’t seen from ASCAP and really scared the crap out of the poor guy. He left, and the owners called his bluff and ASCAP never sued, it is pretty hard for them to prove that you played cover music unless they have it recorded.
The reality of it is this though. If you are playing (read selling if you are getting paid to do it) someone’s music that they sell without their permission you are stealing from them. If you change out “music” to anything tangible and make the same case it looks much clearer.
Joe had a show at his bar last night of Lead Zeppelin songs and made $2000 because of it. None of the money went to the original artist.
Joe made photo copies of Dr. Seuss books and sold them at his book store for $2000. None of the money went to the original artist.
It is the same thing, but in one case you have an idea transfer that is ephemeral and the other physical.
The real argument behind this is not that it isn’t stealing to play other peoples songs for money, it plainly is, but that it’s on such a small scale that it doesn’t matter. I don’t know if it hurting the original artist financially or not, that would be up to them to decide. I do know that it is profiting off of someone else’s work and there is something about it that doesn’t sit right with me. If a venue does have cover songs to make money then I think that they should pay the fees to use those songs. If they want to have live music but not pay the fees then they should have artists play their own music, there is no shortage of original artists right now. Unfortunately this is a hard sell in today’s culture, I think that the music that you hear on the radio is the result of that.
-Tom
As a post script I would like to note that the onus for the a fore mentioned fees in currently on the venues. Bands who play cover songs are not in the wrong in the eyes of the law, and personally I hold no judgements over them. I learned how to write songs through years of learning how to play other peoples music. It is in fact the only way to learn art, by repeating art that has come before, the problem we are discussing is with the question of should it be free to use cover songs in a venue as a way for that venue to make money. I say no it shouldn’t.