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Performance Rights and You…

Hello Troubadourians! I received an email from a reader named John, who asked what I knew about what I would define as “predatory” behavior by people claiming to be representatives of ASCAP and BMI, which John believed resulted in his being turned down for gigs at several venues. I had heard rumors of so-called “crackdowns” by performance rights organizations several years ago but I was never able to verify a first-hand experience, so I considered it little more than hearsay. I’ve since become a member of ASCAP and when I received John’s email, I felt compelled to investigate what ASCAP really stands for and how they conduct the business of protecting the rights of writers and composers.

Here’s John’s email:

Hey Charlie, I’m a musician here in San Diego. I’m working four different music groups and through the practice and work of the groups, we want to perform our magic. I’m surprised that performing can sometimes be a challenge due to restrictions of performances in public because of ASCAP and BMI licensing regulations. An owner of a local farmers market said he had to stop the little bluegrass group he had because he couldn’t afford $4,000 to pay licensing fees required… He said he was called and threatened to be sued even if he used music groups that played original music. It was the same story at a few bars I inquired about playing… one owner said he got harassed by representatives of ASCAP and BMI for having a jukebox. My question is: are these mega corporations losing all that much money that they have to regulate small time amateur artists and venues? –John

My response:

Hi John, Thanks for your question. First of all, ASCAP and BMI are performance rights associations. I don’t think I’d classify either of them as “mega corporations” as their focus and membership is far too narrow to be “mega” anything. In the interest of full disclosure, I am an ASCAP member but I’m not ASCAP’s apologist either. I found it strange that ASCAP would engage in the type of predatory behavior you describe in your email so I did some research on what ASCAP is and what is does. From the ASCAP.com website:

The American Society of Composers, Authors and Publishers (ASCAP) is a membership association of more than 427,000 U.S. composers, songwriters, lyricists, and music publishers of every kind of music. Through agreements with affiliated international societies, ASCAP also represents hundreds of thousands of music creators worldwide. ASCAP is the only U.S. performing rights organization created and controlled by composers, songwriters and music publishers, with a Board of Directors elected by and from the membership.

ASCAP protects the rights of its members by licensing and distributing royalties for the non-dramatic public performances of their copyrighted works. ASCAP’s licensees encompass all who want to perform copyrighted music publicly. ASCAP makes giving and obtaining permission to perform music simple for both creators and users of music.

The licensing policy is as below, again from the ASCAP.com website:

Why should I pay for playing music in public? We often use the expression “they’re playing my song,” not always remembering that while we may have emotionally adopted the song, it still legally belongs to the songwriter who created it, and the music publisher who markets it. When you use other people’s property, you need to ask permission.

What is a public performance? A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances). A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and via the internet.

What does the ASCAP license do? ASCAP gives you a license to entertain your customers, guests, and employees with the world’s largest musical repertory. One of the greatest advantages of the ASCAP license is that it gives you the right to perform ANY or ALL of the millions of the musical works in our repertory. Whether your music is live, broadcast, transmitted ,or played via CDs or videos, your ASCAP license covers your performances. And with one license fee, ASCAP saves you the time, expense, and burden of contacting thousands of copyright owners.

I bought the record or sheet music. Why do I need permission to perform the music? Copyright owners enjoy a number of different rights, including performance rights, print rights, and recording rights. Rental or purchase of sheet music or the purchase of a record does not authorize its public performance.

Where does the money go? Quite simply, to our members. All the fees we collect are distributed as royalties, after deducting operating expenses (currently 11.3%).

I also spoke with ASCAP Member Services and asked about licensing enforcement and if there was a license required for original music. There is not. Basically, there is no “ASCAP Mafia” that actively enforces license fees or collection either. There are simply too many performance venues for that to be practical. Only if a venue is reported to ASCAP as being non-compliant with the licensing of music, they will contact the venue and assist them with how to be in compliance. They don’t threaten lawsuits or harass venue owners. There are different fees based on the size of the venue and they are well within the basic “cost of doing business” for the majority of venues who choose to offer music. Additionally, ASCAP does not require a license from a venue or performers for performing original music.

While I have no direct knowledge of the interactions and conversations between ASCAP, BMI, and the venue owners John mentions in his email, my research indicates that their claims seem to be somewhat exaggerated. I recommend readers investigate the fees for themselves at http://ascap.com. – Charlie

I appreciate any and all verifiable input from Troubadour readers about this subject. In the meantime…

Need to know? Just ask… Charlie (ask.charlie@hotmail.com)

  • July 2012

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