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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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Legalities of covers without a license
