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Location: Utah | For the legal nit pickers, here's a question for you. Let's say that a venue does not have the requisite licenses from BMI or ASCAP for public performances of covers. This is a frequent situation around these parts, so the venue will require that performers only do original songs.
So far, OK. No covers.
But, what if the performer has the written permission of the composer to do the cover, and the composer is not a member of ASCAP or BMI?
In other words, the original composer is the owner of the song, and has not delegated authority to BMI or ASCAP to collect royalties on his/her behalf. Plus, the composer has given express written permission for his/her song to be played as a cover.
In the real world, the answer is "shut up and play the song", since the venue owner would have no way of knowing it is a cover, and if BMI/ASCAP showed up to listen they wouldn't know if it was a cover if nobody said anything. But in the world of lawyers and courts, what is the answer? |
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Location: Boise, Idaho | Originally posted by FlySig:
In the real world, . . . But in the world of lawyers and courts, what is the answer? Boy, if I had a nickel for every time I was asked that question. . .and the answer is almost always "I don't know." If all the answers were easy and we just had a few laws that applied to every state, county, parish, city etc. and the laws never changed, we wouldn't need lawyers and the "real world" would be happy for 5 minutes until someone wanted to sue somebody and couldn't find a lawyer. |
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Location: Phoenix AZ | I would "think" (I am no lawyer), that BMI/ASCAP has nothing to say about any song that is not registered with them. So who actually wrote it (you or someone else) and weather or not you have permission to perform it, has nothing to do with them. Just my guess. |
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Location: 6 String Ranch | go with the real world answer. |
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Location: Boise, Idaho | Usually when I get one of those "hypothetical" questions, the prospective client leaves out important information, like the fact that he already did what he told me his "friend" was thinking about doing and he either got arrested or sued for doing it. I usually translate, "Can he do that?" into, "He already did this."
FlySig, since you live in the real world, not the world of lawyers and courts, Beal's advice is probably best. It's worth exactly what you paid for it, too. |
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Location: Jet City | OK, forgive my ignorance, but are you saying if I go play and sing a Neil Young (or whomever) tune at open mic, I could be sued? |
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Location: Boise, Idaho | Short answer is yes, but the better question is "why?" |
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Location: Lake Hiawatha, New Jersey | Originally posted by Mark in Boise:
Short answer is yes, but the better question is "why?" It's because we are all getting rich playing cover material in bars!! :p |
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Location: Keepin' It Weird in Portland, OR | Cuz I have no original material... I damn lucky that I can play "Heart of Gold"?
[Does that mean no "Free Bird"? :( ] |
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Location: Boise, Idaho | I was thinking, "why would anyone sing a Neil Young song at an open mic" or "why would anyone waste their time and money suing Damon?" The music industry seems to bring strategic suits against some people who pirate stuff. I don't think they expect to collect. I think they just do it to get the publicity to deter others. They seem to focus on the bar owners, because they make the money off the open mics and they're easier to target. Probably the same reason they went after the tab sites, rather than the people that wrote the tabs.
Frankly, I've learned everything I know about this issue from this board, so take it for whatever that's worth. Recently somebody like Damon stirred my interest in open mics nights, so I checked the local sites. Of the two of them (yes Boise is small) one advertised that it preferred original material, so I assume they don't have a license from the music giants.
Now going back to being a smartass, I was really suggesting that Damon should be sued for singing a Neil Young tune. |
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Location: Lake Hiawatha, New Jersey | [Does that mean no "Free Bird"? :( ] [/QB] Hmmm.. Maybe ASCAP is on to something here .... |
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Location: Keepin' It Weird in Portland, OR | Maybe that bar would rather have original songs?
Much better than people coming in singing the same 'pop' tunes?
(Damon might do a 'Good' Neil Young. Personally, I play... I do not sing. And people are grateful.) |
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Location: East Tennessee | Originally posted by John B:
Originally posted by Mark in Boise:
Short answer is yes, but the better question is "why?" It's because we are all getting rich playing cover material in bars!! :p
Reminds me of the guy who won 5 million in the lottery and when they asked him what he was going to do he replied"I'm going to become a professional musician, until the money runs out". :D |
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Location: Maple Shade, NJ. | As Mr. Zappa would say,
"Shut up and play yer Guitar!" |
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Location: Boise, Idaho | Originally posted by John B:
[Does that mean no "Free Bird"? :( ] Hmmm.. Maybe ASCAP is on to something here .... [/QB]
Arthur, I consider "good Neil Young" an oxymoron. |
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| Originally posted by FlySig:
...Let's say that a venue does not have the requisite licenses from BMI or ASCAP for public performances of covers. This is a frequent situation around these parts, so the venue will require that performers only do original songs.
So far, OK. No covers.
But, what if the performer has the written permission of the composer to do the cover, and the composer is not a member of ASCAP or BMI?
In other words, the original composer is the owner of the song, and has not delegated authority to BMI or ASCAP to collect royalties on his/her behalf. Plus, the composer has given express written permission for his/her song to be played as a cover.
But in the world of lawyers and courts, what is the answer? What are the remedies available to BMI et al. if you perform 1 song that belongs to someone else.
There's no license for them to pull from the venue because it doesn't have one so that's out.
Is there a regulatory scheme of fines for this sort of thing - probably not.
That leaves litigation.
Well, one thing to consider before commencing an action is the quantum of damages - so what does 1 song add up to and is it worth it for the cost of an action - probably not.
But lets say BMI does want to proceed against the venue and the performer or just against the venue which would then cross claim against the performer for contribution and indemnity.
In the real world, a letter to the solicitors for BMI stating that the performer has permission from the composer and BMI has no right to the music in any event would probably end it right there.
If for some reason they did initiate proceedings then BMI would most likely lose because they have no rights to the music. Hopefully, they would be dinged for costs because there was no cause of action in the first place and such action might have been vexatious ie. it's real purpose might have been to put a scare into the local music industry such as it is.
IMO, the only legal issue is whether or not BMI has any rights in the particular piece of music - not whether BMI can stop a person from performing a song that someone else wrote. |
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| In Canada we have SOCAN (Not sure what it stands for). Anyway a bar with live cover music must send a % of what they pay the band (3% i think). Socan then sends royalty cheques to registered musicians depending on stats they have put together on what songs are being played publicly.
A club I play went several years not knowing their responsibility to register with SOCAN and was sent a bill for $7000 arrears. Aparrantly they can play hardball if they think they can get $. I've never gotten a dime but my name isn't Neil Young and no one else plays my material. No airplay on the radio either.
I did go to a free songwriting seminar sponsered by SOCAN once. |
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Location: closely held secret | Originally posted by Mauvais Beal:
go with the real world answer. ditto. |
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Location: Boise, Idaho | Canadians are way too civilized. |
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Location: closely held secret | That's a polite way to say it. |
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Location: Indiana | I'm not qualified to comment on the legalities.
I will comment on the "real world" though.
In 30 plus years of playing restaurants, lounges, ski resorts, gambling boats, coffee houses, etcetra, etcetra... it has never been a issue I as the player have been confronted with or asked to make compensation of any kind for.
Not once.
Even in major music capitals where both BMI and ASCAP have substantial representation.
Now I've certainly played venues who have complied with BMI/ASCAP rep's and had the window stickers to prove it... but in truth, they represent a minuscule percentage of the hundreds of places where I've worked.
I'll also add as a BMI writer with copyright's that have charted and generated both domestic and international residuals, I don't ever recall seeing live venue revenues accounted for on any of my BMI statements. |
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| Originally posted by murph:
In Canada we have SOCAN (Not sure what it stands for). Looks like the usual socialist crap to me.
Seems they tried to go after internal internet service providers for royalties on music that people downloaded from offshore sources.
Greedy bastards too:
"SOCAN initially argued that “virtually everyone involved in the Internet transmission chain is liable [to pay royalties] for the communication, including those who provide transmission services, operate equipment or software used for transmissions, provide connectivity, provide hosting services or post content." |
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Location: Sunshine State, Australia | Originally posted by Mark in Boise:
I was thinking, "why would anyone sing a Neil Young song at an open mic" Coz he's the only popular, successful performer that I can sing better than. (except Tom Waits, but I don't like his stuff) |
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Location: Boise, Idaho | As long as you're living in the real world, it seems like you should follow Jonmark Stone's example, i.e., ditto what Beal said. |
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Location: Jet City | Originally posted by Mark in Boise:
Now going back to being a smartass, I was really suggesting that Damon should be sued for singing a Neil Young tune. Poor Neil.
For the record, though I tried nailing the "Ozzy sound" on the video I posted, when I do Neil, I don't sound anything like him.... thankfully.
With everyone else but one band doing covers, I feel safe in the crowd.
Besides, if I'm not profiting on it, how can I be sued? |
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Location: Scotland | Originally posted by Joe Rotax:
Originally posted by murph:
In Canada we have SOCAN (Not sure what it stands for). Looks like the usual socialist crap to me.
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Location: Campbell River, British Columbia | Canadian example only:
As a former Restaurant owner I can tell you here, the venue is the one who pays. (I never did as I successfully challenged the rep who came around) If you are a live music venue, you can bet a Socan rep will be all over you like stink on ....
The musician is not responsible. (isn't that just practical? They never will be.)
It's a flat annual fee for most and distributed based on an arcane formula that has a lot to do with how involved you are in the process and phases of the moon.
A buddy of mine does self-reporting whenever he plays original tunes in a venue that is licensed with Socan. He gets a symbolic little payment every once in a while. (more, of course, on any of his stuff that is actually sold/downloaded.)
Play what you want and 'Don't ask, don't tell.' |
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Location: Scotland | It's the same the world over, and it's a far from perfect system. Yes, the venue is responsible, and that's how it should be. The venue will also pay according to capacity and frequency of use. The guy who self-reports (as my band does) for the handful of published original tunes he plays in a few local venues will be paid accordingly. Maybe not as much as he would like but that will change when he has a hit album and Sony want to use one of his songs on their next Bravia TV ad. Then he'll stop bitchin' about how little he's paid.
Music is ephemeral and as a result the public think it's for free. It fuckin' isn't. You produce a piece of work and somebody somewhere profits from it's use, then they pay for that. END OF STORY. |
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Location: Lake Hiawatha, New Jersey | Personally, I pay for the songs that I download, I don't buy pirated DVD's, I've never had a "magic" cable box, and I spend quite a bit of money on concert tickets. If that's not good enough, they can come after me for some of my "ahem" profits from a typical gig. Let's see...after I deduct for strings, gas, set up and practice time, I would say that I profit about $100.00 for a typical gig (if I'm lucky). I usually play about 50 songs per gig, so that works out to $2.00 per song. So the next time I play "Heart Of Gold" .... and Neil Young happens to stop in for a beer, I will gladly hand him half of my profits, which would be one dollar. I will even throw in a little extra to make up for the poor exchange rate. I would also ask for my money back for most of his CD's that I bought in the last 15 years, and ask him "what's up with the sideburns dude"? It's 2008.
Socialist crap? Don't get me started. |
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Location: Scotland | The artists are not the enemy. The Record companies may be assholes but they are not the enemy either. The enemy are the people who think they can exploit intellectual copyright without paying for it. |
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Location: Lake Hiawatha, New Jersey | Paul, most of my post was sarcastic. Personally, if they came up with a system that made sense, I would gladly get some kind of license for myself. I just don't believe that a guy strumming acoustic covers in a bar with an audience of maybe 30 people is a big problem for the artists.
I would ask Neil about those freakin' sideburns though ..... |
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Location: Scotland | Originally posted by John B:
I just don't believe that a guy strumming acoustic covers in a bar with an audience of maybe 30 people is a big problem for the artists.
I would ask Neil about those freakin' sideburns though ..... It's not a problem for the artists, it's about the economy of the industry, and it's about principle. The guy playing in the bar ultimately makes money for the venue by attracting customers who buy beer or food or whatever. The venue is therefore benefiting from the use of copyrighted material. Therefore they need to pay for that privellage, based on capacity, frequency of use etc. Even if he was playing his own songs he could self-report and get paid a royalty on top of his undoubtedly laughable "fee".
And you and I both know that the venues who claim they can't pay their fees to royalty collection agencies are unable to do so because of the ridicuously high fees demanded by the guy who strums a few covers to 30 people.
And you're right about the sideburns. |
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Location: Utah | Originally posted by Jonmark Stone:
I'll also add as a BMI writer with copyright's that have charted and generated both domestic and international residuals, I don't ever recall seeing live venue revenues accounted for on any of my BMI statements. That doesn't surprise me, unfortunately.
This geographic area may be a bit different in a lot of ways, maybe the music scene too. Around here, most venues do not have a license, so they require only originals. It is clear in their terms that the band agrees to, with a proviso that the venue can "use any and all means necessary" to stop a cover in progress!
One difference around here is that we don't have a thriving bar scene for bands. There are a few clubs with live music, but not many and they don't pay well. Most venues don't draw their own crowd; the bands are expected to advertise and pull in fans themselves. The bands at non-bar venues take home less than gas money usually. Taking in $50 would be a good night, excluding CD and merch sales.
My hypothetical revolves around the reality that almost all the local bands around here are not members of BMI/ASCAP, and are intentionally unsigned with the major labels. It's the new music biz where everyone is indie and everyone retains their own rights. Which means that a lot of artists will cover other artists' works with verbal or email permission.
So they all just shut up and play the music.
My girls do play in a bar/restaurant on Wednesday nights which allows covers. The problem there is the drunk 25 yr old guys hitting on the girls, not knowing that they're only 16!
Here's Sara's thoughts on the issue this week:
" We got hit on by SO MANY drunk men last night.
They would stand directly in front of us and watch us.
And talk.
And wolf whistle.
And howl. " |
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Location: Omaha, NE | Originally posted by John B:
Originally posted by Mark in Boise:
Short answer is yes, but the better question is "why?" It's because we are all getting rich playing cover material in bars!! :p
I think I'll name my new Jaguar "Freebird". |
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Location: Campbell River, British Columbia | Flysig; just get the girls t-shirts or guitar stickers that read "15'll get ya 20" and "No thanks, I don't have Daddy issues" |
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Legalities of covers without a license