Illustration: Norebbo
The man behind the desk punctuates every sentence with the words “scam artists.”
This is how he refers to the people responsible for the harassing phone calls, the lawsuit threats and the system — or lack thereof — behind it all.
“The whole thing, it’s a joke,” the Jersey City bar owner, who asked JCI for anonymity to avoid further retribution, says. “I’m telling you, they’re scam artists.”
Who are these so-called scam artists?
The American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and the Society of European Stage Authors and Composers (SESAC) are the primary holders of recording artists’ publishing rights, meaning any time a radio station plays a song, it is paying these groups for the rights to do so. But under current copyright laws the same rules are in place for clubs and corner bars when a band covers a song by another musician.
“In the thousands,” he says of the licensing fees they ask him to pay — all for the right to let a band play someone else’s song. It doesn’t matter how many songs are performed, or how different they are from the original version.
Likely this is aimed at larger, “professional” cover bands — bands like Sack Blabbath (Black Sabbath cover band), Lez Zeppelin (Led Zeppelin cover band), or Tin Bitch (Iron Maiden) — who dress up like and play another band’s songs exactly as the original band does, often to large audiences. These bands tend to earn a living from performances in which they emulate these bands as closely as possible.
But for smaller bands and smaller venues, like the one this man owns, these kinds of cover bands have no place. The venues aren’t big enough to support those kinds of audiences, and people generally go to these smaller venues to hear original music. If a band covers a song, it tends to be more of an interpretation. But citing “artistic interpretation” as a defense to ASCAP seems too nuanced a discussion when so much money is involved.
“Racket” is the word the man uses to describe the calls he receives, the incongruity of prices quoted for the licensing fee (“one guy said $5,000 and another $10,000, a week apart”) and how the system actually works, or doesn’t.
“They’ll just keep calling over and over again no matter if you tell them you don’t let bands cover songs here. I have no idea how they come up with these numbers, and I don’t think they do either,” he says. “They say it’s based on how many songs will be played, but how could they even know?”
“I’d tell you how much I paid,” he continues, “but I don’t want the calls to start again. They’d probably look up how much they charged me in the past to figure it out. I’m telling you, they’re scam artists.”
For six months he was getting these near-constant phone calls, from different licensing groups, from different people representing the same group, until he finally paid. “They threatened a lawsuit of up to $100,000 if even one song was played without the license,” he claims. Now he just won’t let bands play covers of any kind.
“I’ll rip the mic out of their hands if I have to,” he says. “I’m not paying that fee again. We have bands play original music here, we’re not a venue for big cover bands that draw a lot of people.”
The Abstraction of Ownership, or Music in the 21st Century
This seemingly blanket approach of enforcing rigid rules with strong-arm tactics is nothing new for ASCAP.
If the acronym sounds familiar, it may be because this is the same group who threatened to sue, among others, the Girl Scouts of the USA summer camps for singing songs as part of the daily camp activities — songs such as “Happy Birthday,” or “Puff the Magic Dragon,” or even, ironically enough, “God Bless America,” any of which would require paying royalties to various music publishing groups.
These songs, sung around campfires or played during dancing activities, would, apparently, constitute a “public performance,” or so ASCAP argues. Considering the amount camps pay ASCAP for this license, it would seem they’re onto something.
However, ASCAP has since recanted their threatened suit of the Girl Scouts — under a barrage of, to put it lightly, horrid press — focusing instead on rich summer camps with less broad public appeal. It is even less likely there will be such an outcry against ASCAP for threatening bars for such fees. They’ll have the money to pay for it, presumably, and “rosy-cheeks” suggests something quite different in a bar than a summer camp.
“They know the bands have no money,” the bar owner says. “Which leaves the bars as the target if they want anything.”
But this “systemic” attempt by music publishing groups to recoup what they see as owed money for performances — even if the “system” used is as disorganized as has been suggested by bar owners — is indicative of a larger problem. With the advent of the illegal digital distribution of music, the purchasing of music has, by any metric, been severely diminished. With less money coming in from traditional sources, it seems only natural for groups like these to look for alternative means to collect money for the recording artists and, of course, themselves.
Legalese/Legal-ease
Take for example a recent suit ASCAP filed against AT&T. ASCAP claims that AT&T’s service of providing licensed songs as ring tones, at cost to the end user, constitutes a “public performance,” and should result in ASCAP being paid. By this logic, any time your phone rings in a public place, you (or as ASCAP is quick to point out, AT&T) would owe them money for the “performance” (AT&T has the money to pay them; you, presumably, do not). But AT&T already pays the artists for the use of the songs in the first place. The incongruity of a cell phone ring being compared to a performance aside, the question is: Once you “buy” a song, what have you actually purchased?
The details of this suit were outlined by the Electronic Frontier Foundation, a group of lawyers and activists who have “championed the public interest in every critical battle affecting digital rights.” The group points out that the Copyright Act states that this kind of performance — one “without any purpose of direct or indirect commercial advantage” — is protected against such frivolous lawsuits. Apparently ASCAP’s lawyers didn’t get that memo. Understandable — kind of — considering the still-coalescing legal precedents.
The man at the venue tells me he already pays for a Comcast service to play music at the bar over their PA system. So technically, he thinks, any song covered in that respect should be able to be performed by a band. But he’s not sure.
What rights is he paying for, the right to play the song or the right to have the song played? Is that just semantic jargon or grounds for legal action?
This confusion seems to be what ASCAP is counting on. Ignorance of the law coupled with threats of suits so great as to overcome reason has a way of resulting in people opting to pay a few thousand dollars and be done with it, rather than risk needing a lawyer in a fight against a well-funded industry.
Artistic Interpretation
According to an article in the Minnesota Star Tribune, one of the first papers to cover ASCAP’s threatened Girl Scout suit, there was a decision made amongst some Girl Scouts camp directors to sing the words to “Happy Birthday” to the tune of “Ninety-Nine Bottles of Beer on the Wall,” a song apparently not under the aegis of ASCAP or other such publishing groups. This, the directors determined, would be a safe alternative to singing the lyrics to the melody of the actual song.
Its a minor point in the initial reporting, but a decision in retrospect that brings up a set of questions about what ASCAP is doing, its acceptability, and the consequences in the broader scope of music-as-art. Does this suggest that the performance of lyrics to a song without the music is acceptable by these standards? How would this type of argument have held up in court? What about when the melody of the song is played to different lyrics, as seen in parodies performed by musicians such as Liam Lynch or “Weird Al” Yankovic?
These latter examples clearly fall under the protection of the “fair-use” section of the Copyright Act, in which a set of criteria, including the “purpose and character of use,” the commercial interest of the used work and the amount of the work used, are all considered. The purpose, of course, is to allow for the expansion of art and criticism, suggesting the importance of discourse in art.
So how then does a band’s so-called “artistic interpretation” of a song — i.e. a version of song with the same lyrics and same chord structure, but different sound or style — fit into this criteria, or does it not? How is this different than the appropriation of images in visual arts? Until a court makes a decision, these become relevant but ultimately impossible questions to determine.
In the meantime, smaller venues such as those interviewed for this article continue to attempt to decide between warding off ASCAP and others’ potentially unnecessary (and expensive) fees or wading into the murkiness that is a potentially outdated Copyright Act.
As of the publication of this article, ASCAP has yet to reply to inquiries to this end.
Tags: ASCAP, copyright, law, live music, royalties
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