ASMP Cracks down on Restaurant

[Ricardo.]

The Article

 

This is an article, with a perceivable amount of bias, that may serve as an example of how the whole cover song royalty thing works. That is, the penalties anyways.

 

By the law, he's clearly in the wrong. Else he shouldn't have had the cover band in there. But morally, what do you guys think?

[GtrWiz]

if you're playing music in a public establishment, you hve to pay a licencing fee. That's just how it works. It's his own fault for not knowing how to properly run a business.

[A String]

There are two questions here.

 

The first questions is, did he deserve it. The answer is simply, yes. He broke the law and he has to pay. That's how it works.

 

Second question is, is the law fair? IMO, absolutely not. All I can say is, money grubbing bastards.

[S. Yeti Bigfoot, Esq.]

There has to be more to it. Normally, these folks will give a business owner an opportunity to comply before they start sueing....unless there is obvious intent to escape paying the fees. If he had been notified previously and refused to comply, then I don't feel sorry for him at all.

 

If it was an honest mistake and he was not given an opportunity to comply, then I'm not sure I agree with it.....if I were on the jury in that case, I'd be hard pressed to award anything.

[Guitarzan]

i am totally ignorant to this.

is the band responsible for fees?

or is the Venue 100% responsible?

edjucate me on this.

i don't want to be sued for crankin some ACDC in the basement on my days off.

thats all i need.

[Guitarzan]

would someone posting a youtube video of a performance of a copywrited tune be at risk of a lawsuit as well?

can i hum a song at work?

[picker]

Yeah, I have been wondering how YouTube gets away with it, because public performance is copyrighted. It's posibly because they don't charge for seeing the clips, but I bet BMI and ASCAP will be working on a way to euchre money out of them somehow. Those guys are like the phone company, they will spend $10,000 dollars to go after a penny of royalty money. They have to be a 400 pound gorilla over collecting royalties, because they wouldn't have any credibility if anyone got away with using music they protect without paying for the privilege.

 

And yes, you can hum copyrighted material in your basement if you want to. Just don't record the humming, and/or try to make money off it.

[picker]

Originally posted by A String:

Second question is, is the law fair? IMO, absolutely not. All I can say is, money grubbing bastards.

Fair to who? The artists deserve to make money off of their music, and that's where the royalty payments go. The restaurant owner took a chance on not paying, and he got caught, the same as anyone who gets busted downloading music from Limewire, etc. And hey, the guy was using the music to attract customers to his establishment, which increases his profit. Why shouldn't he have to ante a piece of that up?

[Guitarzan]

so i assume the band is safe?

they get money from the venue, so are they guilty as well?

[Bbach1]

Originally posted by guitarzan:

so i assume the band is safe?

they get money from the venue, so are they guilty as well?

That's an interesting question Zan. It's always been my understanding that the promoter/business owner was the one responsible. I've hired some bands (Atom Ant and Ambrosia) to perform here at the local civic center. They covered their own songs, but I was urged to pay for a license in case the bands covered someone elses songs. I did not, even though I was told the concert would be monitored. I assume it was the ASMP or whatever organization was in charge at the time.

But what about the band? Are they not responsible?

In a business law class in high school, we were discussing copyrights and a local teenage band was brought up. The instructor indicated that the band was liable. That was a long time ago and we did not go into depth, so I don't really have a clue.

Would be nice to know.

 

Lee (Ellwood), you do covers right? What is your take on this?

[Gruupi]

The way it was explained to me is that the royalties are paid by the establishment in clubs and restaurants. This is really the only way they could have any way of collecting. I thought that there was a little bit of leeway in mixing in a cover song or two. If an original band just happens to go into a little Hendrix it should be OK. While I understand that the way songwriters and publishers get paid is by royalties, they need to show some restraint and common sense. But on the other hand, lots of small business owners fell they can skirt this law and others. Just because your not a giant corporation doesn't mean that you should be able to flaunt the rules.

[A String]

Originally posted by Picker:

Originally posted by A String:

Second question is, is the law fair? IMO, absolutely not. All I can say is, money grubbing bastards.

Fair to who? The artists deserve to make money off of their music, and that's where the royalty payments go. The restaurant owner took a chance on not paying, and he got caught, the same as anyone who gets busted downloading music from Limewire, etc. And hey, the guy was using the music to attract customers to his establishment, which increases his profit. Why shouldn't he have to ante a piece of that up?

Personally, I feel the "Greedy" line needs to be drawn. How is the record company losing money because some local cover band is playing a Hendirx tune in some local restaurant? They aren't. They are just being money grubbing scum.

 

I already stated that I believe the bar owner is in the wrong, because he knowingly broke the law. I just feel that the law is ridiculous. Sometimes, laws get passed that sneak under everyones radar. That doesn't make them right.

 

But, once again, I agree that those laws need to be followed until they are changed.

 

I think that the record companies should charge money for the purchase of CDs, downloading songs and using songs in movies, T.V. and commercials etc. That's it.

 

This whole thing with squeezing every penny out every poor sap, who even thinks about a copyrighted song, just makes me sick.

[Guitarzan]

i discovered a curiousity in a guitar mag.

they had recently covered an artist and had correct tabs for certain passages.

a month or two later when having a "lesson" on a certain artists style, they had riffs "in the style off". these riffs were slightly changed and they named the songs that they were "like".

sup with that?

was that a way to cover the artist's music again without any payment to the publishers of the songs?

[JLsound]

One would think this should be ideal for Groups who play their own music. I would think that if bars or restaurants that want to avoid paying these fees, would hire original bands. Unfortunately, as we all know - this is not the case.

[miroslav]

Originally posted by A String:

This whole thing with squeezing every penny out every poor sap, who even thinks about a copyrighted song, just makes me sick.

Yeah...it can come off that way...

...but here's another perspective.

 

If the only way a band can make any money (and the bar owner too) is by playing well known cover music that specifically attracts a crowd...

...then the reality is THEY are making money off the copyrighted material.

 

In other words...without the copyrighted covers...the band's and bar's attraction would wane significantly.

So if you have venues that really draw crowds primarily with cover music...then they will be scrutinized and charged licensing fees.

 

Also, if you are a band that puts on concerts in seated, non-bar establishments...then the burned would fall on you to pay up licensing fees for playing those covers.

 

There are a lot of establishments/bands that DO slip under the radar...so I can understand why the ASMP has to show it's teeth every now end then...otherwise the use of copyrighted material without licensing fees would get out of hand.

 

My solution...

 

Play originals!

[MILLO]

Mkay--All the huge bands have played covers... have those restaurants/bars in which they've played paid the licensing fees? Maybe there should be an investigation and see what goes onstage in all those Hard Rock Cafés around the world.

 

Ellwood plays covers... I'd like to know what he thinks of this.

[skipclone 1]

Ha, the bands that play covers are probably making more per play off the music than the original artists. Why don`t these guys show the same enthusiasm for going after ripoff, dictatorial contracts that make it almost impossible for an artist to make money off anything less than a platinum record? then for the people that do get signed, who`s going after unscrupulous managers? not these guys, they`re too busy coming down on tuesday night cover bands.

[ThisSiteSucks]

Would be hard for me to see the band as liable as they are most likely paid a flat fee.

 

However, the owner could be making out big dependent on crowd turn-out; if 20 people come in, no big money. If he fills-out his 150 capacity, then cover charges and $3.00 a drink can add up to some decent coin

 

I think the smart band these days will make sure any fees are paid and ask for a percentage of the bar's receipts that night.

[skipclone 1]

Yeah, most bands WISH they could pack a club like that. Of course there are alternatives. Play all the covers you want-by independent artists. Play all the covers you want-by non-U.S. artists. I have the distinction of being the first person to play a Japanese cover song at a place in New York.

Of course that means you have to learn the lyrics.

[MILLO]

Hmm, do small venues have to pay periodically, or per event? It kind makes sense if it's a periodical flat fee per venue. I can't imagine all of a sudden bars telling bands "no covers, please", because they can't afford to pay the fees.

 

Ellwood, where are you? This is a VERY interesting topic, by the way.

[skipclone 1]

1X2 many.

[JeffLearman]

It's typically an annual fee, based on venue seating.

 

In theory, these revenues go more to songwriters than to record companies. If you cover a Led Zep tune, you're not using the recording (Phonorecord) copyright, you're using the Performing Arts copyright, which is (initially) owned by the author. Of course, lots of authors have signed away their rights, which is unfortunate.

 

As mentioned above, the agencies will often negotiate because it's better to get *something* than for the venue to stop hiring bands. However, I've heard tales of little coffee houses that had to stop allowing any covers because the rate is supposed to be per seat, without any regard for how many hours a week those seats are actually used listening to covers.

 

And there was the infamous case of the girls' camp being sued ... clearly a case of going too far and the folks who filed backed down after the public uproar (saying it was a misjudgement by a few individuals and didn't represent the company policy OF COURSE).

 

If the rate being charged the venue is so high it kills the deal, then obviously they're asking too much. More local offices should be sensitive to this. I suspect that many of them are, and we mostly hear about the sad cases where they aren't.

 

Like most things, it's a matter of balance. Either extreme is inappropriate. But I bet that most artists owning PA copyrights would rather folks play their music live and not fret the revenues from small venues. The associations policing the copyrights need to make sure they're really following the wishes of the members they're supposed to be representing.

[Scott Fraser]

<

 

Yes.

 

<< Maybe there should be an investigation and see what goes onstage in all those Hard Rock Cafés around the world. >>

 

Any restaurant which uses copyrighted & published music, live or recorded, is obliged to pay an annual licensing fee to the relevant performance rights organization. In the US it's BMI & ASCAP. In the past, compliance was voluntary, but it sounds like the performance rights organizations are now using legal means to enforce payment of licensing fees. The same battles took place in the broadcast industry in the 1940's, with the result that all stations now pay a yearly blanket fee & in return are granted the privilege to broadcast music for which the composers & publishers are then compensated.

 

Scott Fraser

[Bbach1]

Originally posted by miroslav:

...but here's another perspective.

 

If the only way a band can make any money (and the bar owner too) is by playing well known cover music that specifically attracts a crowd...

...then the reality is THEY are making money off the copyrighted material.

While that might be true, in what way does that take money out of the hands of the recording artist or record company? In fact, it may embellish sales if a bar patron decides they want an orginal copy of the music.

That's the greed factor I believe Craig is speaking of. Perhaps all that should be required is that you identify the original artist.

While on that subject, if you change the song is it ok then?

[Justus A. Picker]

Originally posted by Bbach1:

Originally posted by miroslav:

...but here's another perspective.

 

If the only way a band can make any money (and the bar owner too) is by playing well known cover music that specifically attracts a crowd...

...then the reality is THEY are making money off the copyrighted material.

While that might be true, in what way does that take money out of the hands of the recording artist or record company? In fact, it may embellish sales if a bar patron decides they want an orginal copy of the music.

That's the greed factor I believe Craig is speaking of. Perhaps all that should be required is that you identify the original artist.

While on that subject, if you change the song is it ok then?

You are using their property without permission to make a profit. It not much different than using someones car without permission to make a buck.

 

If you "change" a song it is a "derivative work" and still covered under copyright law.

[Scott Fraser]

<>

 

This doesn't involve record companies at all. It's the performance rights organizations, BMI & ASCAP who are representing the interests of the songwriters & their publishers. It's the songwriters, through the agency of the PRO's, who are seeking to be paid for the received value (added entertainment value of music during dining) of their work, i.e. the composing of songs.

 

Scott Fraser

[Dr. Ellwood]

Originally posted by MILLO:

Hmm, do small venues have to pay periodically, or per event? It kind makes sense if it's a periodical flat fee per venue. I can't imagine all of a sudden bars telling bands "no covers, please", because they can't afford to pay the fees.

 

Ellwood, where are you? This is a VERY interesting topic, by the way.

Wow can't believe I missed this thread so long? OK well everybody has hit the mark pretty much on how it works, it actually comes down to WHO is going to pay..but someone WILL pay. In our case it is the club that pays the flat fee annually (our Canadian gig) I have a signed agreement between the club management and the monitoring entity showing a paid receipt every year (we-- the band do not sign anything) On the US gigs, our Union business agent handles all the paperwork and gets the assurances that fees are paid up in full for each venue we play at. None of my bands have ever paid this fee, we also have never played a gig with out proof that these fees are paid, because payment of these fees is a line item in our standard contract. Our only responsibility is to furnish a current list of songs we will perform, and that we will not deviate from this list (the list is huge) All I can say is if you are going to gig in the US the very first thing you should do is join your local musicians union and keep your dues up to date. The business agent for my union is also a practicing attorney in entertainment law, his services are part of our dues.

[A String]

As Bbach said, I think it's more of a promotional tool that is beneficial to them, then anything. If I play a bunch of covers, some of the folks who are listening, may be inclined to go out and buy the original versions.

 

Heck, the ASCAP people should be paying me for doing free promos for them.

[A String]

Originally posted by ellwood:

All I can say is if you are going to gig in the US the very first thing you should do is join your local musicians union and keep your dues up to date.

Just for the record, (and for those of you who want to gig in Canada), we have the exact same rules up here. You must belong to the musician's Union and pay your dues in order to play covers.

 

In the hundreds of clubs we played in, we were never asked to show our cards once. However, you don't want to not have one, the one time they do ask.

[Dr. Ellwood]

Right AString and also, if you are a US band and you are going to be gigging in Canada, get a international travel card from your US union, tell your club owner or event A&R person that at least one performing member of you band is a up to date paid member of the Union and even if the rest of your guys are not, you can still play and they will have to pay Stewards Dues for each gig, but it will get you by!!

A little story just to reinforce that point, five or six years ago we did a corporate gig in Niagara Falls Ontario, it was for a large tableware manufacturer and a great gig for sure. About two hours before the gig I was sitting in the event staff office and the sound guy for this gig came running in saying "you better get out to the floor, there's going to be big trouble now!" the local union rep was out there asking questions and had already talked to most of our players and crew and no one had a up to date card with them! This guy was beet red in the face and mad as hell by the time I got out there. He said if someone in this outfit does not have a up to date card he Will on the spot pull everybody on the wait staff, all the lighting and sound people and have them out in the parking lot standing there when show time starts!!! I reached into my wallet and pulled out the Travel Card from the DF of M with the travel stamp endorsement WITH the Canadian affiliation on it and he went blank faced! After that he lined up everybody in our crew and took cash from everyone of them with a receipt and left the building! When we got back our Union reimbursed their money.