Pay up! $30,450 for illegally playing four songs

[OB Dave]

The court in New Kids on the Block v. News America Publishing Inc. articulated a three-part test for nominative fair use:

 

First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

 

... so I guess that, unless you claim to be Van Halen, assume all their trademarks, or imply/claim endorsement by Van Halen, you can perform "Jump" without any retaliation from ASCAP et al.

 

I think you might be confusing trademark law with copyright law, which are very different things.

[Joe Muscara]

If I were confronted with that, I'd challenge them to prove they are the owner of the alleged copyright(s) before I pay a dime.

 

I'm getting a little tired of these "fronts" acting on the behalf of IP owners, and courts have set a precedent dismissing IP cases brought by entities that are not the true owners. They only reason the labels use these "fronts" is to shield themselves from negative publicity.

What "fronts" are you talking about here?

[iLaw]

If I were confronted with that, I'd challenge them to prove they are the owner of the alleged copyright(s) before I pay a dime...

Maybe I'm misunderstanding you, but I think you're saying that you would demand that a PRO prove that they truly have contracts with the artists they claim to represent (and whose music presumably is being paid in your establishment) before you would enter into a licensing agreement with them. Fair enough; the judge would do the same thing. But I'd say it would be unrealistic to believe that there is any significant misrepresentation going on from the PROs. You'd get your proof in writing tomorrow.

 

Larry.

 

Disclaimer: I've been fairly supportive of the PROs in this thread so before anyone thinks that I'm shilling here, I should let you all know that I have never represented a PRO.

 

[frogmonkey]

I know I'm not the only one on this forum who has ASCAP or BMI-registered music, who gets radio play, and who never sees a penny from it.

 

Hello.

I get the occasional direct deposit from BMI. I usually go out and celebrate by blowing all the money on a sandwich.

 

Someday, when I hit the big time, I too will buy a sandwich.

[Joe Muscara]

[Geoff Grace]

FWIW, I've received a fair amount of royalties from BMI over the years. I can attest that they do pay--at least for television use.

 

Best,

 

Geoff

[JeffLearman]

That's interesting, because I just recently had a little "situation" with a venue and SESAC, which is my PRO. They had contacted the venue about a month before my band was supposed to play there requesting they purchase a license. The venue pays a yearly blanket license for ASCAP, and they didn't seem to realize that doesn't cover all music, just ASCAP artists. They also mistakenly thought it had something directly to do with my band, like that we initiated the whole thing (we didn't) and that it was just a matter of us telling SESAC to call the whole thing off. The whole thing ended up being resolved amicably, but I facepalmed when I found out SESAC didn't want them to buy a blanket license, just a temporary license to cover our gig for $20. We ended up selling the place out, and the venue owners were balking at paying a measly $20?

That seems bascially WRONG that they'd charge the venue for hiring YOU to play YOUR songs. That is not their purpose! Their purpose is when someone else is playing your stuff (or someone is playing your recordings, and it's not you).

 

... it's my understanding is that it's the venue's responsibility to pay those fees, since bands are hired by those venues to perform; the bands themselves can claim protection under Fair Use, but it's a fairly murky issue.

 

According to Patents & TMs' website:

 

The court in New Kids on the Block v. News America Publishing Inc. articulated a three-part test for nominative fair use:

 

First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

 

... so I guess that, unless you claim to be Van Halen, assume all their trademarks, or imply/claim endorsement by Van Halen, you can perform "Jump" without any retaliation from ASCAP et al.

Irrelevant, since the original issue is about copyrights, and this is about trademarks.

 

Also, bands can't play covers under Fair Use, except during practice.

[Joe Muscara]

That's interesting, because I just recently had a little "situation" with a venue and SESAC, which is my PRO. They had contacted the venue about a month before my band was supposed to play there requesting they purchase a license. The venue pays a yearly blanket license for ASCAP, and they didn't seem to realize that doesn't cover all music, just ASCAP artists. They also mistakenly thought it had something directly to do with my band, like that we initiated the whole thing (we didn't) and that it was just a matter of us telling SESAC to call the whole thing off. The whole thing ended up being resolved amicably, but I facepalmed when I found out SESAC didn't want them to buy a blanket license, just a temporary license to cover our gig for $20. We ended up selling the place out, and the venue owners were balking at paying a measly $20?

That seems bascially WRONG that they'd charge the venue for hiring YOU to play YOUR songs. That is not their purpose! Their purpose is when someone else is playing your stuff (or someone is playing your recordings, and it's not you).

That is incorrect.

 

Live Performance Payments - SESAC

 

SESAC pays its writer and publisher affiliates for live performances at all size venues across America through SESACs Live Performance Notification System. This is located in the online Affiliate Services. Login now.

 

Be prepared to list the venue name, address, size of venue and the dates of your performance. You will also need to include the registered SESAC songs performed. A list of your catalog will appear on this form for you to choose from. The SESAC songs must be registered first in order to complete this process.

Live Concert Royalties - BMI

 

BMI Live (Small-Venue Performances)

BMI Live allows performing songwriters to input up to six months of their performance data to be considered for payment. Songwriters may input their tour information at their convenience for concerts from the previous six months and receive these royalty payments quarterly. Both headliners and opening acts may input tour information, and the program is open to all BMI songwriters.

[JeffLearman]

OK, Joe, but what's the point of getting some org to pay you for your own gig? What's the benefit to the artist? Seriously, this seems like overkill.

[Bridog6996]

Because ultimately a live performance is a live performance, period, regardless of the source. At least according to PROs. Is it kind of ridiculous? Yeah, but at the same time, PROs are really the only ones upholding the "music isn't free" mentality these days, which benefits us all, so it's a double edged sword to say the least.

 

What's the benefit? The benefit to me is that I get a check every quarter. I can think of worse things.

[Joe Muscara]

Look at it this way, Jeff. The PROs collect money from the venue for every song that gets played. If my band plays some covers and some originals, the writers of the songs that get covered get their PRO royalties, so why shouldn't the writers of the originals as well? Also, the original songs may be cowritten by band members and other people (producers, other musician friends, spouses, etc.). Those people should get their cut, too.

[Michelle ggurl]

Have any of you guys ever encountered (not necessarily played at) venues that wanted bands to play all original music because "of the hassle they were getting from the PROs"?

 

 

Yes. But they also didn't pay s*** (surprise!) so I quickly determined they were not worth the hassle. Keep in mind this is a Cuban restaurant and I asked them if they'd like Latin music for any of their special events and the response I got was, "I don't like that salsa stuff, but I'll listen to the music on your website and get back to you." Of course they can have whatever music they want ... but ... I'm sorry I just have to do this

[kanker.]

OK, Joe, but what's the point of getting some org to pay you for your own gig? What's the benefit to the artist? Seriously, this seems like overkill.

It's been standard practice in Europe for ages. I know a band over there that makes enough money every year in performance royalties that they recently took 1 year's performance royalties and bought themselves a pretty seriously tricked out Mercedes Sprinter for touring.

[frogmonkey]

FWIW, I've received a fair amount of royalties from BMI over the years. I can attest that they do pay--at least for television use.

 

Best,

 

Geoff

 

To be fair, my own royalties (which I never saw) would be small potatoes, even if calculated generously. But the fact remains that the venues I play presumably pay the licensing fees, even though I never get my sandwich money.

[JeffLearman]

Because ultimately a live performance is a live performance, period, regardless of the source. At least according to PROs. Is it kind of ridiculous? Yeah, but at the same time, PROs are really the only ones upholding the "music isn't free" mentality these days, which benefits us all, so it's a double edged sword to say the least.

 

What's the benefit? The benefit to me is that I get a check every quarter. I can think of worse things.

I'd agree with that if it were a blanket licence, but in this case it was a one-time thing to cover one performance. The idea of copyrights is to pay the copyright holders when someone ELSE plays the copyrighted music. I do not have to pay myself when I play my music, and I don't need some organization to make sure I pay myself (and take their "administrative fees" out).

 

Really, this is idiotic, and it's just a way for the org to feed their own mouths. PROs are important: they're the only way the songwriter gets paid. Blanket fees make sense; otherwise it's too expensive to administer -- though admittedly it favors the big acts over the small ones. But making a special point to ding the club hiring an all-original act is ludicrous. I'd find a PRO that doesn't make a habit of that (the one-time fee for ones own gigs). The PROs exist for the benefit of the artists, not the other way around.

[JeffLearman]

OK, Joe, but what's the point of getting some org to pay you for your own gig? What's the benefit to the artist? Seriously, this seems like overkill.

It's been standard practice in Europe for ages. I know a band over there that makes enough money every year in performance royalties that they recently took 1 year's performance royalties and bought themselves a pretty seriously tricked out Mercedes Sprinter for touring.

OK, since you think this is a valuable service, just pay me $50 for every gig you get, and in a year's time I'll give you a nice check for the amount you paid me!

[Cygnus64]

The PROs exist for the benefit of the artists,

At least in theory. Like so many things, it gets blurry at times. The use of statistical sampling for commercial radio in 2011 is laughable. Many formats are easily 100% trackable, yet no attempt is made to do so. It's heavily skewed. Live music of course is different.

 

OT but very similar: the musician's union does not exist to help musicians, I've learned that after being in it for 30 years. It's a Ponzi scheme that benefits maybe 3% at the literal expense of the other 97%. It's like the Borg with classical music, it seeks out any group and tries to unionize it for the sole purpose of getting work dues from it. Pay doesn't matter, union gigs often pay less than non-union, and then you have to pay dues on top of it.

[Eric Iverson]

Most of my playing has been as a guitarist in churches, and we played copyrighted material all the time, CCM greatest hits, etc. with never a problem. Had we RECORDED it for sale, we might have had to pay royalties, I don't know.

 

I guess it's a different situation, in a practical sense. As far as I know, ASCAP and BMI don't send reps to churches to record performances.

 

And churches almost never bought sheet music - everything was downloaded or learned by ear. Not sure if there was any infringement involved.

[MoodyBluesKeys]

Our church pays CCLI annually - their charges are based on congregation size - we pay one fee for use of the music in our services (which includes the license to copy the lyrics either on projector or as part of the bulletin), and another fee for use of the CCLI website - chord sheets and lead sheets.

 

Our church secretary has to track what material is used during certain parts of the year, and submit the tracking information to CCLI through their website. I presume this is done so that CCLI can equibably pay the artists involved.

 

Separate licensing must be done for any use outside the church (such as playing in other churches, evangelistic meetings, public festivals, etc.)

 

I do not know if ASCAP and BMI are involved in this area - most of the music that we use is from hymnals, CCLI, or purchased with license to use from any of a number of publishers that produce materials such as cantatas.

 

CCLI also has Rehearsal Licenses (allowing temporary multiple copies of purchased commercial recordings to be used while preparing to play/sing the music), Streaming and Podcase Licenses, Video Licenses, and movie clips for use by churches. Most of these license costs are based on size of the church, and I feel that they are very reasonably priced. Frankly, it would cost us much more annually for a person to attempt to get permission and deal with the licensing issues individually with each rights holder.

 

I am both one of the musicians, and also a part of the church Music Committee - one of our responsibilities is making efforts to see to it that our legal responsibilities are covered. I do realize that this is not universal among churches. Some probably don't know any better, others are likely willful infringers.

 

[Theo Verelst]

In Holland some years ago I tried to check out how it was when I was going to demonstrate (with recorded music too) my big and medium sized monitoring system on the remainder of the biggest dutch electronic instruments trade show, and found I'd probably have to owe them for maybe ten euros for exaggerating the principle. I only occasionally have played in cover performances the last decade and would have to hope the venues pay for that but I am pretty sure a jam session cafe where realbook (illegal copies !?) will not often be in touch with the copyright org about that...

 

When I did organized covers for money I don't know if the people organizing the gigs paid Buma/Stemra. I shoudl be soo. I remember one of the famous dutch female popular singers was in that org, evidently people writing songs and selling record will want their reasonable share in the profits, but somehow I suppose that is considered a minor problem compared with bigger issues here.

 

Maybe there is a special exception for churches (I more than a while ago weekly played among other things also piano and organ in a bible study group) but there I recall it might also be a matter of people making the sheet music and selling it. When I had to pay taxes for vacation work which didn't amount ot more than a annual minimum I called the tax department and they said there was no need to file a form (to prevent the hassle).

 

Given the horrible situation about copyrights and sampling in the music world in general I suppose there is a lot to be improoved. There are certain rules I looked up, like exceptions when you want to start internet radio with low bandwidth or "fair use" policies for reporting.

 

[Eric Iverson]

Our church pays CCLI annually - their charges are based on congregation size - we pay one fee for use of the music in our services (which includes the license to copy the lyrics either on projector or as part of the bulletin), and another fee for use of the CCLI website - chord sheets and lead sheets.

 

Our church secretary has to track what material is used during certain parts of the year, and submit the tracking information to CCLI through their website. I presume this is done so that CCLI can equibably pay the artists involved.

 

Separate licensing must be done for any use outside the church (such as playing in other churches, evangelistic meetings, public festivals, etc.)

 

I do not know if ASCAP and BMI are involved in this area - most of the music that we use is from hymnals, CCLI, or purchased with license to use from any of a number of publishers that produce materials such as cantatas.

 

CCLI also has Rehearsal Licenses (allowing temporary multiple copies of purchased commercial recordings to be used while preparing to play/sing the music), Streaming and Podcase Licenses, Video Licenses, and movie clips for use by churches. Most of these license costs are based on size of the church, and I feel that they are very reasonably priced. Frankly, it would cost us much more annually for a person to attempt to get permission and deal with the licensing issues individually with each rights holder.

 

I am both one of the musicians, and also a part of the church Music Committee - one of our responsibilities is making efforts to see to it that our legal responsibilities are covered. I do realize that this is not universal among churches. Some probably don't know any better, others are likely willful infringers.

 

Thanks for the information. "Not universal"?? I think your church is very much the exception, not the rule.... not that I don't applaud your honesty. Especially since, while some Christian artists sell tons of records, etc. (or USED to, before everyone downloaded everything) there are some who are doing it for a living and as a ministry, and barely make enough to eat pizza - and especially if they have kids, that's just not enough.

 

 

 

[MoodyBluesKeys]

Exactly - I happen to make a livlihood from computers - but I believe that work should be rewarded. I do have problems with some of the big organizations where I expect that most incoming monies get eaten up by "overhead," and the creative people that are the foundation get little or nothing.

 

I don't know how much exception - several other area churches are using CCLI materials. Of course a "traditional" or liturgical church can use the public domain material in the hymnbooks legally for all of their services.

 

We also try to make sure that any of the artists who perform in our facility are well treated. As a small church, we don't have the mega-church budget, but it is a matter of honesty.

 

I spent several decades servicing electronic musical instruments in both home and church environments. Almost always - the places in the boonies or the "bad" neighborhoods were quite honest and paid me on time - they usually would not even call me until they raised some money to pay. The places I had to watch like a hawk were the ones high up on the social strata - with many bankers, lawyers, doctors, and other wealthy people in their congregation. They usually had a few members that were attorneys just to make it a real pain to collect from them.

 

However, hasn't it always been that way? Even if playing in a bar band - the size of the bar and luxury furnishings are no assurance of being paid properly.

 

[RABid]

... As far as I know, ASCAP and BMI don't send reps to churches to record performances...

 

Maybe they are afraid that close proximity to a cross or holy water will cause spontaneous combustion.

[Moonglow]

....And of course there are (admittedly rare) circumstances where the performer (band or otherwise) is also the club or restaurant owner....

This was precisely my band's situation from 1986-1994. Our club featured live music, with the DJ playing music for about one hour before the bands started and during their breaks. My band would play there every couple of months....

 

We would do everything we could to maintain a favorable relationship with those ASCAP/BMI guys. They would come in like the Gestapo once per year and we would simply pay the fees and send them happily on their way. Interestingly, they never seemed interested in the live music aspect of our venue, and were only concerned with the DJ's music! And I don't think they ever really understood that a band owned the club.....

[Eric Iverson]

The ASCAP/BMI guys were just doing their job, and had a lot of other clubs to visit. They were doubtless being judged by how much money they could produce, so the check they got from you validated their existence, or at least their place on the payroll!

 

I doubt very much that they cared about who owned the club. "Well, at least we got a check from this guy.. all we got from the other club was promises..."

[Jeff Klopmeyer]

What this really comes down to is perspective.

 

If you're a songwriter with published works, it's important that a PRO do their job to try and find income for you. I'm an ASCAP artist, by the way, and I'd hope that if there were bands out there covering my stuff, the places they play (and bring income to via door charges and food/drinks) would pay the fees.

 

If you're a performing musician doing cover tunes, and club owners are constantly telling you horror stories of getting shakedowns from PRO reps, then you start to have negative feelings toward them via proxy.

 

Ultimately, this is an issue between owners of places that have music playing (live or recorded), and the performing rights orgs. As musicians, you need to choose what's more important to you: protecting the rights of songwriters, or helping the budgets of venue owners. It's not necessarily a right-or-wrong situation, but your opinion will change based on which side of that fence you're on.

[J. Dan]

This may be taking it slightly OT, but I have a theoretical question. What if the only music a bar plays is the Radio? The radio station pays royalties for the songs it broadcasts. So then should even more royalties be paid by the bar? I wouldn't think so. What about when a radio station broadcasts from a bar? Same thing, I would think.

[Cygnus64]

This may be taking it slightly OT, but I have a theoretical question. What if the only music a bar plays is the Radio?

Most places aren't allowed.

[kanker.]

This may be taking it slightly OT, but I have a theoretical question. What if the only music a bar plays is the Radio? The radio station pays royalties for the songs it broadcasts. So then should even more royalties be paid by the bar? I wouldn't think so. What about when a radio station broadcasts from a bar? Same thing, I would think.

This is why bars use Muzak or other music vendors. Think about an NFL, NBA, or MLB game, how they talk about the licensing for home use, any other use yadayadayada.... Music is the same way - radio plays to play the songs to individuals with radios. Businesses aren't supposed to use radio for music because you aren't supposed to use a publicly broadcasted medium for entertaining paying customers - you're using someone else's product that THEY are paying for the right to use to entertain your customers without paying for the benefit of the entertainment service. That's why cable, satellite radio, Dish, and any other content provider charges one rate to individual consumers, and another rate to businesses. This rate provides the business a license that the provider negotiates with the various PROs and TV entities, and is covered by the more expensive rate. The difference between the rate the content providers charge and what a PRO or TV entity would charge for a blanket license is extreme, thus making the content provider a whole lot more attractive. If a PRO guy walked in to an establishment playing radio to customers, there'd be a problem, and the courts would side with the PROs.

[Cygnus64]

I spent a summer in Des Moines Iowa about 11 years ago. I went into 3-4 bars and noticed that every one of them had a huge selection of CDs behind the bar. I'm assuming that this was some kind of workaround to paying the PROs. How it worked I have no idea, but I doubt it was a coincidence.