# General Mandolin Topics > Jams, Workshops, Camps, Places To Meet Others >  BMI strong arming

## Mando Medic

One of the listserves that I belong to have had a running discussion about BMI. I thought I would seek the wisdom of this group to see if others have had this problem and how you dealt with it. 

For many of us who play bluegrass, we meet in grange halls and other assorted venues where music is the only business at hand. Not coffee shops or bars or restaurants. Admission is not being charged, but perhaps a collection jar may be placed to offset the hall rental. It has come to my attention that some grange halls in the Northwest (Oregon) have recently been told rather directly that they will have to buy a BMI license even though it's a jam session and admission is not being charged. This of course means shutting down the jam as the price quoted was $700 something a year. I know this fee can be negotiated, but is it standard practice for BMI to go after jam sessions? I'd appreciate any intelligent responces. Thanks, Ken Cartwright

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## fredfrank

I can't imagine the argument BMI could muster to justify this. No one is profiting from the performance of this music, and in all likelyhood, the majority of it is public domain music.

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## mandopete

Hey Ken - I saw this on the NWBluegrass list too. Apparently this has been going on at the Maltby jam for several years. Each year there is a Maltby concert to raise funds to cover this and hall rental expenses.

Seems like a bummer to me since it's hardly a for-profit adventure, but them's the rules.

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## Mando Medic

Pete, I'm trying to get to the bottom of this. I don't like it and I don't feel it's right or perhaps legal, but I need some help. Thanks, Kenc

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## Walter Newton

I'm not a lawyer (and it sounds like you should talk to one), but I believe that a public performance of copyrighted material without paying the necessary fees is technically an infringement, regardless of any profit or not (in civil court anyway...profiting potentially puts you into criminal trouble as well). #If you're sure the music is 100% PD or original you should be OK...but really it's the venue's responsibility to understand the situation and pay the fees, just part of the cost of doing business if you're offering live music (not necessarily saying I agree, but as far as I understand it that's the law).

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## Alex of the North

I've never dealt with BMI, but I've dealt with ASCAP, and, yes, they are entirely unreasonable. The agents out in the field are goons, they will harass you, shout at you, and eventually threaten you with a lawsuit. If it goes to court, you will lose because legally, they're on solid ground if you play any material that is published under BMI. It doesn't matter if any money is involved, copyright means that you need permission to perform a piece, not to profit from it. If you want to be safe, only play pieces that are public domain, and make sure that they are public domain. If they've contacted you, they probably already have documented performances of BMI material, which they'll cite when they threaten you with a lawsuit. We eventually bought the license. If you look up the subject on google, you'll find many instances of bars being sued into bankruptcy over open mic nights, etc.

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## Bill Snyder

I was wondering what would keep ASCAP from showing up after you had paid BMI and demanding their payment as well.

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## Mando Medic

That is another can of worms. One of the problems is that the royalties almost never get to the intended, folk, bluegrass writers. They have no accountability. Kenc

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## fredfrank

Make the jam a private affair. Sell temporary memberships at the door. Hmmm, sounds like Utah.

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## Mando Medic

Can anyone share information with me about know venues or jams that have ceased because of BMI intervention? Or venues that complied after legal pressure? Thanks, Ken Cartwright

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## kudzugypsy

what is really, really, really sad and adds to insult is that BMI/ASCAP pays that *fee* money based out on RADIO / COMMERCIAL airplay (at least thats how i understand it from other discussions) which means, say Brittney Spears or 50cents, or whoever is currently getting more airplay ends up with a large percentage of the money. the actual songwriter/performer in a BG or folk genre doenst see a penny. i could perhaps justify if it went to the actual copywrite owner.

supposedly, if your establishment ONLY plays say, country, then it goes to the country genre for distribution...and BG falls under country - if its mixed use, then probably to pop genre.

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## Michael H Geimer

There is a cafe in San Francisco (Bazaar Cafe) which has taken a stand against the system. They only allow acoustic performance of original or P.D. material. There is a sign above the stage area which read something like "If you are a BMI or ASCAP representative at work, you are not welcome here."

Great venue, exceptionally supportive of the acts, and their customers knows this too. Good food, to boot!

Like many people, so many of the songs I perform fall under BMI or ASCAP authority, so I've only performed there as a support mandolin for my friend Billy ( who writes something like a song a day ... all of them good! )

Just wanted to share a story about a venue that isn't playing along with the standard tune.

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## John Flynn

Couldn't the even public domain thing be tricky? Just out of curiousity, I looked in the BMI catalog online and it had over 50 copyrighted listings for "Soldier's Joy." Those listings imply that the tune has dozens of "Songwriter/Composers." Of course we know that "Soldier's Joy" goes back to at least the Revolutionary War and no one knows who wrote it. It is as "PD" as they come. Those listings are actually just the various recorded arrangements. But couldn't BMI make the case that whatever version of "SJ" you are playing at your open mike sounds a lot like one of thier 50+ protected listings and is therefore not public domain?

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## Michael H Geimer

They don't really recognize PD performances. Their reps are mostly local, independent folk who earn money collecting license fees. These reps have no incentive to walk away from a potential collection over a PD exemption. Rather, the MO seems to be "pay up, or hear from our lawyers". They are known to carry copies of winning court judgements in order to back up their position.

In other words, it's up to the venue to argue that its music does not require a license, but the court time and costs are proabably more expensive than the license would be. So, most folk-friendly venues give up and pay up, or they cancel the jam, open-mic, trad session, etc. which stirred up the trouble in the first place.

Whataracket!

There is a multi-page thread on ASCAP/BMI with a lot of good discussion going on right now at the UMGF under General Music.

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## mandopete

Well, not to condone this type of behaviour, wouldn't it just make more sense to nut up and pay the blasted fee? #At $700 a year, that's about 58 bucks a month. If your jam gets 20 people or so that's about 3 bucks per head.

I'm not sayin' it's right, but I think that's essentially what has been done at Maltby. #In that way we can publically announce the jam and not fear the BMI branch of the Sopranos.

 #

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## Jonathan Peck

I didn't read where Mando Medic said that his jam was being threatened by BMI. Best advice is to never advertise your jam in the newspaper, or anywhere else.

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## Michael H Geimer

Well ... $700 is a lot or little depending on your situation. It's sometimes too much to pay for a mandolin, and other times too little to pay for a mandolin. LOL

For me, I think many BMI/ASCAP fees run contrary to the needs of a heathy neighborhood; IOW, they are collecting fees for normal, innocent human behavior like gathering to play music in a pub, coffee house, or restaurant. 

The argumnet that these places operate for profit is thin; these places make their profits off selling beer, and food, not music. A radio station makes money off music. So does a concert hall ... but for a restaurant it's really just atmopsphere, and secondary to their business. (this is why many places choose to shut down music rather than pay a fee which is not related to the core business)

Consider that it could easlily be argued that the copywritten newspapers, magazines and books that are typically loose and avaiable in café's might also be considered violations. Should venues pay up fees for making reading material available at thier location? What about copywritten material thier paying guests access via the Internet?

You see ... it gets pretty ridiculous. I say let's focus the royalty collection efforts on major broadcast situations and leave the small venues out of it ... just as the small fry songwriters are for the most part left out of the royalty distribution process.

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## mandopete

"Best advice is to never advertise your jam in the newspaper, or anywhere else"

I don't think that will work as that's really kind of contrary to the notion of a successful jam situation. #I think the majority of good jam situations thrive on simple word-of-mouth, but that may be picked up by various media and from there it would be impossible to control.

One could always offer the "speakeasy" as an alternative.

_"I'll have the Chinese watch ready at midnight."_

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## Michael H Geimer

> Chinese watch ready at midnight


What key is that in?

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## Jonathan Peck

True, but it is likely, around here anyways, that any establishment that is thriving and known for live music is also licensed with BMI/ASCAP. Alternately, these establishments are also likely to feature live music every night of the week. This creates alot of opportunity for local acts to play paying gigs and build a following. 

At the weekly jam I attend, there are several folks who are paid to organize, run, and play in the jam by the establishment. But, this is a popular live music destination with a large drinking crowd, and not a 'private jam' at a rented hall as Mando Medic has mentioned.

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## Michael H Geimer

> This creates alot of opportunity for local acts to play paying gigs and build a following.


Again though, this presumes that there is only one "proper" way to be a fuctioning musician ... that is, to be an act that puts on shows for profit, and sells recorded media. 

But there are more, and I think better ways to behave, but those less travelled paths are not currently being recognized. Those of us that choose to live a casual, amateur musical life are getting caught between the wheels of progress.

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## mandopete

> Those of us that choose to live a casual, amateur musical life are getting caught between the wheels of progress.


Amen to that brother!

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## mandolooter

I agree with what ya say Benig but not with the policy that BMI is currently operating under...If Britney is making money off of ANY bluegrass musicians then thats by no means a fair system. I dont care how much play she gets on the radio, a jam in Oregon shouldnt be makin her money! The system needs some serious reworking.

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## mandroid

Do playing jazz standards mean the arraingement that you most closely resemble and the core tune that its based upon are both covered . 
maybe Atonal stuff is the only thing left 'sorry that sequence of notes is in ..' 



 I'm not bad, i'm playing strangely as a protection ..

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## JeffD

Some of this may have already been covered in prior posts, but this is what I experienced.

It is really a problem. I used to run a coffee house, and we would have live music (singer songwriter stuff) every Fri and Sat night. BMI did harass us. Their point was if any of the musicians sang anything that was owned, we had to pay royalties, whether or not we charged admission or passed the hat - if the public was welcome, we had to pay royalties. If we paid their fee, however, and I don't remember how much it was, then they wouldn't bother us for the royalty. 

This includes, by the way, if you play background music from a CD. If you want background music in your restaurant or club, you either pay MUSAK, or you pay a yearly fee to BMI, or you do like a lot of places do and only play very stuff from 20 years ago or so - I guess after some rights have expired or something.

If you claim that the performers at your venue play ONLY in the public domain, they say they will send someone over covertly to listen and you take your chances of getting caught.

The extent to which these guys were willing to negotiate the fee seemed to me more like extortion - how much can they get you to send them. If you do send in the fee, they give you a sticker for your door or window.

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## The Old Sarge

This is not just a problem for venues such as jams, coffee houses, and pubs. It is also a problem for churches and funeral homes. Hard to believe, I know.

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## jaco

There's an interesting article called"ASCAP/BMI Protectors of Artists or Shadowy Theives" by Harvey Reid on the web. Sorry I can't link. This is a very disturbing group who claim to represent artists and spend an enormous amount of their collected revenue on offices in New York City (about a quarter million a month) expensive law firm legal teams, shiny brouchures, etc., with apparently no accountability to anyone but themselves. There were a couple states who tried to pass legislation preventing them from conducting buisness there but the Federal Government came to their rescue. They litigate with strong armed tactics and apparently will appeal any and all rulings that are not in their favor. Some buisnesses have even sued them convinced they were affiliated with the Mafia! It's going to take some serious money and/or a concerted effort by the "little guys" to reign these guys in. Check out the article.

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## jmcgann

You can't copyright chord progressions, so if you play tunes 'based on the chords to soldier's joy' or whatever, melodic variations, you are probably safe- what are they going to do, take you to court and play the tape for a judge?

Actual songs with lyrics are another matter, but I think fiddle tunes are exempt from this strongarm BS. Just don't play the melody note for note (why would you anyway?)

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## Mando Medic

I have been studying this issue for a long time and what I can tell you is that when you or I as a musician play a copywritten song, no matter where it's played, church, grange hall, funeral parlor, etc; it's covered under a license agreement and whether or not it's a free or paid gig, or jam or funeral, you must pay a mechanical fee for it's use. Because musicians are so mobile, they go after the owners or leasors of the realestate which is not so mobile. I'm wondering if any of you have actually heard of a grange hall, church or funeral parlor that had to pay and did? As Pete knows, there is a grange hall in Maltby Washington that pays and I'm trying to get the full story on it. Thanks, Kenc

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## mythicfish

Solution: Don't ask, don't tell.

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## JeffD

> Solution: Don't ask, don't tell.


I absolutely agree. If you run a venue or a jam or anything, don't ask for permission. Best if they (BMI/ASCP) don't even know you exist. They are relentless and petty, and can make things pretty miserable for you.

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## Mandobar

here is a link to harvey reid's article

http://www.woodpecker.com/writing/es...-politics.html

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## The Old Sarge

> I have been studying this issue for a long time and what I can tell you is that when you or I as a musician play a copywritten song, no matter where it's played, church, grange hall, funeral parlor, etc; it's covered under a license agreement and whether or not it's a free or paid gig, or jam or funeral, you must pay a mechanical fee for it's use. Because musicians are so mobile, they go after the owners or leasors of the realestate which is not so mobile. I'm wondering if any of you have actually heard of a grange hall, church or funeral parlor that had to pay and did? As Pete knows, there is a grange hall in Maltby Washington that pays and I'm trying to get the full story on it. Thanks, Kenc


I live in a smaller town in Texas and I believe the funeral home has an ASCAP sticker/plaque/license/whatever on one of the office walls. I need to stop by there today and will check for sure.

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## jaco

Thanks Mary, My New Year's resolution is to learn how to post a link! I'm going to do some more research on this as the case law should be interesting.

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## Klaus Wutscher

Reading this thread, I had a vision of things to come in the not too distant future: Playing UNLICENCED live music in shabby cellars with a trap door entrance covered under the carpet behind the bar. Sounds a bit like the "good old days" of prohibition and moonshining - we all know how that ended and eventually, the powers that were came to their senses...

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## mandopete

> Just don't play the melody note for note (why would you anyway?)


Two words - Bluegrass Police.




BTW - great article, answers a lot of the questions.

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## Big Joe

I have a different point of view. I do not have a problem with them collecting fees for the music played. I do wish it were fairly distributed. I don't know that it is or isn't, but I do know a lot of people that do collect from these. Our facility pays BMI, ASCAP, SESAC all three. In addition, churches have to pay also. If we are going to have music, we have to pay. I would never have a problem paying a few bucks to jam or listen. I know how much the music industry has been hurt in recent years by people stealing songs from musicians and writers. The entire industry is in a very difficult situation as a result and many good acts cannot continue to perfrom full time as a result. Many of the good young acts cannot get started as they used to because the industry has been decimated by piracy and internet downloads and friends burning CD's for friends. I see no difference from burning a CD wrongly or performing music live without paying the royalties. I guess my experience from this end gives me a different view from many, but it is hard to see people you know and care about hurting from the thoughtless acts of others. As for me, I'll through in a few bucks and be thankful I'm doing the right thing.

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## Bill Snyder

Many churches today have a license from CCLI. Owe church uses PowerPoint to project the words to songs and at the bottom of the last slide there is our CCLI # given.

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## Ken Sager

> Make the jam a private affair. Sell temporary memberships at the door. Hmmm, sounds like Utah.


More than you know, Fred. More than you know...

Back to the topic, BMI could do exactly what ASCAP does, since they are a "Music Performing Rights Organization" and they do license restaurants, clubs, hotels, etc., just like ASCAP.

Will they? That seems a question for them.

Here's a little info:
http://www.bmi.com/licensing/entry/C1289

Love to all,
Ken

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## mandopete

Just out of curiousity, would it be possible to just pay the mechanical fee for any copyrighted material? As I recall the mechanical fee is something like 10 cents a song. I would think it would be cheaper (but more complicated) and the money would go to the artist rather than the mob.

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## Michael H Geimer

> Many of the good young acts cannot get started as they used to ...


Take note of this, because there are still thousands upon thousands of aspiring musicians. They will learn to play, they will form bands, and they will perform no matter what the statues say. This is simply human nature, and youth culture behaving as normal.

My fear is that the gateway towards legitimate royalty payments in closing because the labels cannot afford to sign as many acts. PROs have not caught up with the trend towards smaller independant releases, many on MP3 or similiar digital formats. There are certainly efforts being made to get a handle on digital distribution and its need for royalty collection, but those efforts are mostly concerned with protecting the rights of the major labels and the acts they represent. (actually, most of the digital debate is concerned with protecting the software industry)




> Playing UNLICENCED live music in shabby cellars with a trap door entrance covered under the carpet behind the bar.


This may not be far from the truth if the industry fails to account for a growing population of living, breathing musicians who wish to participate, but who cannot get signed to conventional labels for lack of profitablility.

In the UMGF thread there is a published, working songwriter who wondered, "Who here is a actual stakeholder?" as if only those currently making money within the system have a legitimate voice in the debate. I didn't take that personally, but it was a telling comment about just how exclusive the industry can be ... those working outside of it just don't seem to count.

I see it the other way, those working inside the industry have a known financial bias. However, the further we can open this industry to the point where the small acts can collect their fair share, too ... the better off the whole culture will be.

Right now it seems to be profitable to collect from small venues, but unduly burdensome to pay out to the small acts. Hmmmmm ... something stinks.

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## JeffD

> I do not have a problem with them collecting fees for the music played.


I have no problem paying either. What I don't like is the arbitrariness of BMI. They started out demanding something like $1000 per year. When we told them that was impossible they came down to $700. When we called a lawyer they came down to $350 per year. I thnk their last offer was something under $100!! 

Our coffeehouse was so small we could not even get a State Arts Grant. The state said we were not much more than an ill defined group of people who met on a somewhat regular basis. But we were established enough for BMI to worry about us.

It seems to me it was not about how many protected songs we played, it was all about how much they could strong arm us into paying. 

I have not yet read the above referenced article, and I will shortly, but...

I don't understand how it is the venue's responsibility - (except in the case of a recording say, played for a paying public). Shouldn't the performer be the one to take care of it? According to what they told me, it doesn't matter what the performer says, or even if we get something signed by the performer saying all his songs are either public domain or that he/she has paid for the right to play them - BMI at least, still wanted money from us.

A jam session is even harder to understand. The audience to a jam is incidental - we are not jamming for their enteretainment and we are not charging for them to come and listen. But again, apparently the venue is on the hook.

Again I have no problem paying artists and musicians for their work and their intellectual property. But I don't see how BMI et. al. tactics help an artist get his music heard.

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## sgarrity

This debate always gets me riled up. I believe anytime money is made on the use of someone's song, then they should get paid for it. But we have to pay because we play that song in a jam??? The majority of the time I've bought the cd so I can learn the song. Or I hear a good song and go buy the cd so i can learn it. I think the industry and the songwriters themselves are shooting themselves in the foot over this. Now don't get me wrong and let me state again that I WANT them to make money. They are what helps keep our music fresh and alive. But let's think a little about the way to go about it.

Shaun

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## Randy

If the laws stink and are unfair as to where the money goes, shouldn't we then be about getting the laws changed? There are thousands of us on this site who should have some clout if we can find a sympathetic legislator who is also a musician who will understand this unfair practice. 
I am a songwriter who performs my own stuff the vast majority of the time. I am honored when someone else wants to do some of my tunes, but I also would like a couple of nickles to help buy the paper I printed the song on. I'd never see those coins under the current law, but Brocoli Spears might. Let's change the system. I'm from Kentucky but I don't think there are any legislators in this state who know a mando from a uke, sadly enough.

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## jaco

I would be very interested in hearing from someone who actually works for BMI/ASCAP. Perhaps we could send this thread over and hear from someone? Especially someone from their legal Department. Always good to hear the opposing view.

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## Michael H Geimer

There are some very good, well presented arguments in favor of the current system being made over in that UMGF thread, in addition to their FAQ entry on the subject.

One strong point that was made centered on the need for positive solutions (rather than irate critiques and accusations of being a "goon"). I'm certainly guilty of the latter (except the goon part), so I'll make an attempt to suggest a solution that I would find acceptable.

I suggest: non-amplified music should not be considered "public" unless preformed in a venue specifically desgined for public performance.

Symphony concerts would require a license when applicable, but a coffee house gathering would not.

This would not solve the counterfeit infringement problems major labels face these days, but it would get the issue off the backs of us amateurs (who really have very little to do with the larger war being waged over IP profits)

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## jaco

Interesting research... Apparently in 1996 BMI/ASCAP (one or the other) attempted to slap fines on the Girl Scouts of America for singing their own songs. You know"sign around the campfire.. join the campfire girls." Truly unbelievable. The more I read, the uglier this gets.

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## jaco

I'll try to do the link:BMI

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## mandroid

Happy Birthday keeps getting its copyright renewed , as I hear . 

another reason to swear off having any more birthdays .. 39 + 20 ..
'life is like a roll of toilet paper , the closer to the end the faster it spins..'

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## August Watters

Unfortunately the licensing organizations seem to be willing to go after just about anyone, regardless of actual liability, if they think there's a buck to be made. A few years back a local pizza joint near me shut down its weekly songwriters' circle, rather than pay the exhorbitant fees being demanded by BMI. The owner protested that the songwriters had the right to perform their own works. BMI claimed that didn't matter, because of the possibility someone might play a copyrighted tune. 

It appears to me that:

1) while BMI claims its licensing fees are appropriate to the size and type of business (and are therefore affordable), its phone solicitors are not known for helping small businesses find the appropriate level of payment, but instead are known to make big demands backed by punitive threats;
2) making a payment to BMI, ASCAP or SESAC is sure to bring phone calls from the other two.

Next time you wonder why there aren't more places to hear live music, this probably has something to do with it.

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## August Watters

> with apparently no accountability to anyone but themselves.


Sounds like this is the real problem. Anyone know if ASCAP or BMI disclose what percentage of fees collected go to artists?

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## Mando Medic

BMI on their web site claims that 86% of what they collect goes to the artists. The other 14% collected is administrative costs. Kenc

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## jaco

It would be interesting to send a public records request to their accounting department and see exactly what is going to whom.

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## jaco

The following remarks were made during congressional hearings for the "Fairness in Music Licesing Act" passed in 1997.
  "Businesses should not be charged for music outside their control, such as a jingle in a commercial. They should not be forced into doing business with every licensing society demanding a fee. They should have easy access to the music they are paying for, and there ought to be a fair and affordable form of dispute resolution, so that a florist from Brookfield, WI doesn't have to go to New York to resolve a dispute with BMI or ASCAP.

  Until these requirements are met, the performance rights groups will continue to enjoy the coercive apparatus of a monopoly navigating with their platoons of lawyers through the confusing and often contradictory terms of court decisions in the ambiguous and unenforceable language of the Copyright Act. A tavern-keeper on Pewaukee Lake does not stand much of a chance under the existing system. It is no wonder that ASCAP and BMI plead for a market-placed negotiation instead of congressional action, because they control the marketplace.

  The licensing societies insist that Congress has no role in the music licensing debate when the central issue is a proposal to perhaps diminish their ability to extract fees. Meanwhile, they have suggested that Congress is the appropriate forum for the expansion of the scope of copyright and the expansion of users' obligations to pay additional fees. The licensing societies cannot have it both ways.

  The Constitution that I read empowers Congress to promulgate laws creating intellectual property rights. The Constitution also suggests the need for balanced intellectual property rights. When the mechanisms designed to ensure this balance are not working, it is Congress' right and responsibility to take appropriate legislative action." Amen

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## jaco

P.S. The comments were made congressman F.James Sensenbrenner Jr. a Republican from Wisconsin.

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## Deaf David

I'm really having a hard time gettting my head around this. If you and some friends are playing in your living room, with a few listening and not playing, is THAT public? 

This is all getting very silly--and a bit alarming.

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## Col. Suggs

As an author, I'm sympathetic with songwriters who do have legitimate concerns about copyright and royalties.

Yet, at the same time, the differences between the book and music worlds are quite vast. #For instance, I can't imagine an organization charging local book clubs a fee for holding a book discussion.

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## Jonathan Peck

> I would be very interested in hearing from someone who actually works for BMI/ASCAP. Perhaps we could send this thread over and hear from someone? Especially someone from their legal Department. Always good to hear the opposing view.


Here are some Excertss from an old thread on a different forum from an ASCAP rep. or you can view the whole thread herehttp://www.guitarseminars.com/ubb/Forum1/HTML/002062.html 

parrish ellis
unregistered 

To all involved in this thread,
As a composer/songwriter, guitarist, IGS Alum, and most relevant to this topic - an ASCAP employee, I feel it is my duty to set the record straight in regards to the ASCAP camp licensing story. 

Yes, you are all promulgating outdated, misleading information on this issue which was resolved a few years ago. At the heart of the issue, which various writers in the press seemed happy to ignore, is the fact that ASCAP does NOT charge licensing fees to not-for-profit businesses - a vast category that includes many summer/scout camps. 

Furthermore, the estate of Irving Berlin, the composer of many standards including "God Bless America" (one of the songs that was at issue in the girl scout case), donates ALL of the royalties from that song (that's a ####-ton of mailbox money, i assure you) to the Girl Scouts of America. This was a decision that Berlin made during his lifetime, far before this misguided article was published.

Dennis - I wholeheartedly agree with your statements about songwriters/composers deserving compensation for their creative work. Intellectual property is no different than tangible property - if you take it without paying the owner, then you're committing an illegal act for which there are punitive consequences. Above all else, the language of copyright law was written so that it might be beneficial to the American public as a whole. If an inventor/songwriter/author/poet/engineer had no time or money to invent/create/compose/write/build because he or she had to work a 12 hour shift in 7-11 to pay the bills, then we'd all be much worse off for it and the world would be a much bleaker, less highly evolved planet.

Dennis, and all other songwriter, composers and lyricists out there in Guitar Forum world: if you think BMI does a better job than ASCAP, you are fooling yourself and depriving yourself of a lot of great opportunities. Feel free to call me at work (212) 621-6241 or email me at: 

bottleneck
Member 

oh please,ascap not out of control?i suppose the mafia is ok too.we've all had the slimy ascap guy at our shows,over-anxious to go on our mailing lists.small bar owners hit up for money,just like thugs asking for protection money.ascap is terrible. 

parrish ellis
unregistered 

bottleneck,
Ignorance is bliss, and judging from your post, you're in paradise. Your response is consistent with so many other internet message-board postings by people who don't take the time to educated themselves on the topic under discussion, and who respond based solely on emotional impulse, devoid of logical thought and coherent expression. It's easy to take click on the "submit a response button" and write two sentences of baseless rhetoric. 

ASCAP, like BMI and SESAC, is a performing rights organization that licenses the copyrighted musical works of its members for public performances, both domestically and abroad through reciprocal agreements with foreign organizations. Performing rights organizations do not collect mechanical royalties, and the accounting figures for CD sales have no bearing on ASCAPs royalty distribution.

A business that uses music as part of its normal profit making operations, whether it be a bar, a live music club, a restaurant, a hotel, a TV station, a bowling alley, a greyhound bus, a country club, a radio station, a web site, whatever; they must accept a music licensing fee as a basic operational cost. Think about it  youre a bar owner making money from selling food and alcohol to patrons who either come to hear music or enjoy an atmosphere greatly enhanced by a live band, a CD, the radio, TV, etc. You dont steal the kegs out of the beer distributors truck and then sit back and sell the pints for pure profit (admittedly not an exact analogy, but applicable nonetheless). ASCAP's licensing fees are based on a fair weighting formula and can sometimes negotiated depending on mitigating circumstances. The vast majority of music users find the fees completely reasonable and an inconsequential cost compared to other expenses that they incur through their daily business operations. Im not going to pretend that ASCAP is perfect - every big business (even non-profits) have flaws in their systems. Should they be fixed? Definitely. Can they be fixed? Of course, everything can be fixed. How can changes be effectively implemented? I dont know. The US government is a mess right now, how do we fix that? They extremely complex subjects, worthy of entirely separate discussions. 

Now, I can only assume that you are on the opposite end of the table from the bar owner/music user, since you mentioned that your band had been approached by that slimy ASCAP guy. I dont understand your resentment since ASCAP can only benefit you as a songwriter and performing musician. It costs nothing to be a writer member, and there are a generous number of grants, scholarships, free workshops/seminars, showcases, opportunities to promote/advertise yourself through our member magazine (Playback) and web site (www.ascap.com), and merit-based monetary awards for music that has a unique prestige value that doesnt get airplay in traditional media, in addition to quarterly performance royalty distributions. ASCAP also has an industry leading public affairs group that works hard to fight against potentially disastrous legislation that would strip music creators of their ability to make a living doing what they love. Some of the proposed or previously enacted legislation that ASCAP actively opposes include the work for hire clause, the controlled composition clause, and copyright erosion. 

So you didnt like the ASCAP guy that approached your band at one of your gigs; hes only trying to help you succeed, hes not trying to sign you to a record label contract that would financially screw you for the rest of your would-be career. Maybe he didnt offer you a showcase, its impossible to showcase the bands of all 150,000 members. Bands selected for showcases are chosen because they write their own exceptional music, tour constantly and are active in their local music communities, not because they have commercial potential. 

It always amazes me that so many musicians are ignorant to the merits of an organization that was created by songwriters/composers/lyricists in order to support fellow creative musicians. ASCAP is one of the few truly altruistic institutions in the music world. ASCAP is not out to take money from musicians or make money from your music. Why dont you direct your misguided anger at record labels who put artists in a position of irreversible debt or retail stores who charge $20 per CD.

If you truly love music, if it enriches your life, then you must realize that it has value: as an art form, a passion, a lifestyle, a group of historical traditions, and yes, a commercial commodity. Maybe youre a doctor, a car salesman, a financial analyst, a janitor, a lawyer, an insurance broker, a social worker - who knows what you do to pay your bills; but Im a musician first and foremost (regardless of a day job), and I live, breathe, and eat music. I make major sacrifices for music to be my life, and I am but one person in a huge population of professional musicians who know the facts and have a deep appreciation for an organization that is fighting for the rights of creative musicians, helping us to at least attempt to make a living composing and playing music.


[This message has been edited by parrish ellis (edited October 17, 2002).]

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## jaco

Here's the problem as I see it. (while I am an attorney (over twenty years, and a music school graduate (Berklee) I don't claim to be an authority on this subject). ASCAP/BMI have absolute authority over their own buisness. They are not regulated by anyone. If you are a small club owner who has live music and ASCAP comes to you and says pay us this amount which WE believe is fair. You're screwed. Who do you appeal to? Answer, no one. ASCAP: pay or we'll sue you for thousands and you'll be responsible for our legal fees. (i.e. we will put you out of buisness).Take em to court? They never loose. Because they negotiate their way out of the cases they would surely have lost (Girl Scouts of America) agreeing to a "symbolic" $1.00 per year fee. Their legal teams will appeal you all the way to the U.S. Supreme Court until you are penniless. The only solution as I see it is for Congress to get involved and pass Federal legislation regulating these self proclaimed protectors of intelluctual property.

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## GTison

I think that establishments that profit should pay the BMI dues. It's not a new thing. Shutting down a private Jam is something else. Artist should get paid if they wrote the song. How else are they going to get paid for what they created? To say that most of those "bluegrass tunes are Public Domain", I don't think this is true. That's like the old "Dueling Banjos" story where Warner Brothers claimed the rights because they thought it was PD, When Arthur Smith and Don Reno( I think) wrote it. I think most bluegrass musicians and small time bands don't pay any royalties on songs they record. They just "operate under the radar".  It all just smacks of being RINKYDINK.   The public doesn't own the music the Author does.  I hate to see small time places go through being hassled out of existence. But music rights are part of the cost of doing business.  If you have music on hold you are supposed to pay. That's why you buy it from MUZAK or what ever because they'll take care of that for you. You pay the fiddler!! some way some how.

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## August Watters

> Yes, you are all promulgating outdated, misleading information on this issue which was resolved a few years ago. At the heart of the issue, which various writers in the press seemed happy to ignore, is the fact that ASCAP does NOT charge licensing fees to not-for-profit businesses - a vast category that includes many summer/scout camps.


If that's true, why are the Girl Scouts paying a symbolic $1 per year? Doesn't that establish the idea that the Girl Scouts are liable? And why have we heard recent accounts (such as the one that started this thread) about grange hall jam sessions getting hassled over royalties?

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## JeffD

> Just out of curiousity, would it be possible to just pay the mechanical fee for any copyrighted material? #As I recall the mechanical fee is something like 10 cents a song. #I would think it would be cheaper (but more complicated) and the money would go to the artist rather than the mob.


This would make a lot of sense. Especially if the burden was put on the performer to pay it. 

If your question is whether BMI et. al. would be satisfied with this - my experience says no.

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## jaco

I don't believe anyone here thinks artists shouldn't get paid for their work. That isn't the issue. The issue is who's regulating or wathing over the collector's. Answer:no one.

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## JeffD

> I'm really having a hard time gettting my head around this. #If you and some friends are playing in your living room, with a few listening and not playing, is THAT public? #
> 
> This is all getting very silly--and a bit alarming.


I don't know where the line is. For example, in my neighborhood we have a series of "house concerts" where a performer is coming through town and someone of us in our folkie network agrees to put the performer up for the night and host a concert in his/her living room. The rest of us attend, with a dish to pass, and generally we pass the hat for the performer.

If BMI finds out about house concerts they will have a field day. It doesn't matter if they legally have a right - who is going to pay thousands of dollars in legal fees to avoid an anual fee of a few hundred.

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## JeffD

> As an author, I'm sympathetic with songwriters who do have legitimate concerns about copyright and royalties.
> 
> Yet, at the same time, the differences between the book and music worlds are quite vast. #For instance, I can't imagine an organization charging local book clubs a fee for holding a book discussion.


What about a public reading of excerpts of the book?

If todays intellectual propery climate had exist 200 years ago the library may never have come into existance.

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## fatt-dad

Here's what I want to say: ######## ##### ######## ### ######## and #######.

This stuff makes my head ache.

f-d

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## mandocrucian

I want to see cell phone video of when one of the BMI "tough guys" ends up messing with the performance of another Charlie Manson. I've never heard of them messing with #biker bars, or clubs with some sort of mob connection. Guess their arms ain't strong enough for that.

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## Adam Tracksler

I have to answer questions like this all the time in my line of work, I'm a graphic designer and I contract photographers to do artwork for my clients. Every photographer I have ever worked with works the same way - you pay them for their time and you buy the rights to use the photography, you never own the photography, unless you buy it outright at the beginning. 

A lot of my clients have a hard time with this, they figure that the photographer has been paid for his/her services and that since they were the ones paying , they shouldnt have any restrictions on the use of what they paid for. 

I undrstand this line of thought, I dont get paid a royalty on evey ad that I make or click n a website, architects dont get a piece of the action when a building they designed gets sold... its a very different way of working than the rest of (most) of us... If I sell my mandolin, the luthier does not get a piece of that action either. 

It is a very sticky wicket that musicians are in, it has got to be tough to make living writing and performing songs. For every person on the high end of the money making charts, there are probably 100 on the low end....

I think that public Jams are a real gray area of the IP world - if I am in a circle and someone sings a song, that I dont like and dont really want to play, but play any way - am I responsible for that person's copyright infringement? If so, how much? what if I only played half of the song?

There has got to be a better way.....

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## Mando Medic

I'd like to remind and clarify to everyone as to why I started this thread. A grange hall in Washington state was forced to acquire a license from ASCAP for jam sessions. It is true that from time to time this grange hall uses the hall for performances and they do not have any issue with paying license fees for those events as they charge admission, pay the hall rental, insurance, sounds/lights, bands, advertisers, etc; the issue is when they have non paying jam sessions and do not charge anyone to come in. Be it a jam session at a library, church, Odd Fellows hall, fire department or any other non commercial venues, this is a practice that will seriously diminish the music and education of not just bluegrass, but any music that is passed on this way. 
On another note, I wrote to Bluegrass Unlimited to let them know that I was doing a story on this issue and was told that "It's not a good fit for us." I have written for them in the past and have been published. I suspect that it's a hot potatoe to them and they don't want to get involved with this kind of contraversy. I will try IBMA and see if it's a story their interested in. Meanwhile, I like the dialoge here and appreciate all your thoughts and input on the subject. There are many things that I find wrong with ASCAP and BMI but I'm focusing on just one issue at this time. Many thanks, Ken Cartwright

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## Tim

> A grange hall in Washington state was forced to acquire a license from ASCAP for jam sessions. It is true that from time to time this grange hall uses the hall for performances ...


Some of the posts earlier implied that the venue pays a flat rate. #Is this venue being billed separately for the performances and for the jam sessions?

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## Mando Medic

My understanding will be a quote from the person running the jam. This is what they said. I have left out persons names at this time and the actuall location of the jam for now. Kenc
"Hi Ken, as of this moment we hav'nt been approched by BMI....and I'm
not about to call them and see why. ASCAP is another story altogether,
for years we have paid them on an every 3 month "plan"...+ a fee when we
put on a Concert, and at the end of the year I send them whatever we
"owe" to make up thier minimum amount that they think they are due ? 
  When they first contacted us, they sent a letter to the XXXXXX 
Community Club Board threatening them with a lawsuit if they did'nt pay
ASCAP every month, of course the Board panicked and called me and said
they would have to cancel the jam if we did'nt take care of it...they
wanted no part of a lawsuit !!! I called XXXXX XXXX of Seattle Folklife
since he had been going around and around with ASCAP for years.....he
said I could play "dumb" for a while, have them address all thier notices
to me instead of the club....but eventually I would probably have to pay
them. 
  So I sent them a letter thanking them for thier interest in our
little jam session , but we really were not interested in thier product
!!! ......This must have taken thier lawyers many months to figue out
because I did'nt hear from them for about a year. Then they sent me a
letter saying we HAD to pay for any music played where the public was
able to come in and listen......I wrote back and told them people
wondered in and out, there was no fee charged and no one got paid....I
had my name on the jam because I opened the door and made the coffee.
  They said I would have to go around to the various circles that were
playing music and write down all the songs that were being played and
send them a copy of the songs....I wrote back and told them I was a busy
person and if they wanted to come and write all that down they were free
to come and do it themselves.........I think I also told them they really
needed a good PR man....because the way they came across smacked of Nazi
Germany.
   Then they wrote and said I could send in a form they would send
me...and I could send it in every 3 months, just paying for the number of
chairs we put out for the jam ...which by my figuring we owed them about
20.00 a jam.......so thats what I send them, 60.00 every 3 months and I
don't call them ....I don't want them even thinking about us, under the
radar so to speak !!!
   The Concert is another story,...a different venue completly and the
writers of the songs being performed should be compensated ( the magic
word is SHOULD BE ).. we're selling tickets to the public....were hiring
Bands, paying for the venue, paying for insurance, fire inspection, sound
man, refreshments, printing expenses etc......after taking ALL expenses
out, we pay a % of the net to ASCAP, I send them a program....they seem
to be happy with that and as long as they don't bother us, we won't
bother them.
    I think its a scam of the ist degree to charge for holding a free
jam session......a Festival or a Concert where money is passing hands is
a different animal. As I said we hav'nt been found by BMI and I'd like to
keep it that way......**.so if you use any thing in the article that
that I've written here...please don't mention my name , ....after 16 yrs of using the Community Club, I'd hate to have
to find another place to jam.
   I know a number of Coffee houses where we jammed in years past
either closed or quit having music because of the financial hardship of
paying ASCAP....just because 4-5 people would come in and sit in a circle
and drink coffee while they jammed for fun..........sometimes we were the
only ones there too ( not much profit in that).
    The discussions have been interesting and I personally don't know
what do do about it...they ( ASCAP, BMI) have the money and the big
lawyers....all I can do is pay as little as possible and keep a low
profile !!!!!        ( Quiet, but still smoldering)   XXXXXX"


And there you have it. Kenc

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## Jerry Byers

This may have been asked already - there is so much here to digest - but what if a jam starts up and everybody is playing original tunes or the music was written by one of the players. Does it now become the responsibility of the owner of the establishment to know this is a jam session of original music? There are no royalties to collect and BMI, ASCAP, whatever doesn't have a leg to stand on.

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## August Watters

Ken, if you (or someone closer to Boston) want to do that workshop at the Joe Val Festival, let me know. I'm finishing the workshop schedule now. It seems like a topic the bluegrass community needs to be discussing.

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## Mando Medic

Hi August, Miss our phone conversations. Thank you for your invite to the festival. Just went to the web site to check it out and what a lineup. As a full time school bus driver and full time repairman with a music store, it's just too short of notice for me to come. However, I'd love to come next year and do a workshop for you on BMI and ASCAP as well as a mando tasting etc: I appreciate your contributions to this subject matter. I'm no expert, but I'm sure getting a great education. My intent is to follow this as far as I can go with it and if it takes the rest of my life, I'll fight for the right to jam with no license. By the way, I am, and have always been a huge Joe Val fan. God, I'd love to be there. Thanks, Kenc

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## Jonathan Peck

> Sounds like this is the real problem. Anyone know if ASCAP or BMI disclose what percentage of fees collected go to artists?


ASCAP, according to their website, keeps 16% for overhead and distributes 86% to it's members

Let's say that 'hypothetically' they sell one million license agreements at $100 a pop. ASCAP would keep 14 million dollars and distribute 84 million to it's members.

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## Katie

I think my point of view will probably be a little unpopular here. I'm not a huge fan of the concept of intellectual property because I think it has been taken to such an extreme that it contorts itself. I think people should be recognized for their art. I think they should be paid for their art, but I think it's going too far to say that they should get paid every time their song is played no matter what. We hold on to our songs and our stories so aggressively that it's a wonder they get heard at all. 
On the other hand, I also think that it's insane that there is such a level of dishonesty that people would steal a song, slap their own name on it and deny it's author any rights to it, but that happens too. Musicians need to be protected, but we take it so far. Our concept of ownership (in all aspects of life) is way overdeveloped. I'm not really sure why anyone should own music to begin with, but I'm a flaming liberal with wild ideas living in a market driven society, so I know how practical my opinion really is.
It is sad though. Music making used to be a part of life for all members of a society. I would never blame BMI or ASCAP for the decline of amatuer music, but I would say that they are connected. It's this idea that someone else owns the music, that we're just borrowing it, and if we're not careful, we might break it and have to pay for a replacement. 
The cold I'm suffering from is making it hard for me to organize my thoughts, but maybe I'm making a little sense here.
*^_^*
Katie

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## Jonathan Peck

> I think my point of view will probably be a little unpopular here. #I'm not a huge fan of the concept of intellectual property because I think it has been taken to such an extreme that it contorts itself. #I think people should be recognized for their art. #I think they should be paid for their art,


Hi Katie,

I was just working on a break for 'Roll in my Sweet Baby's Arms' today. I downloaded a Tabledit file from Mandozine in the key of 'G' and wrote out the first 12 measures of the blues break, transcribing it to the key of 'A' note for note. I then completely changed the last 4 measures with my own ideas. Is this now my own intellectual property? Technically, I believe it is, but morally I'd have a hard time claiming that it's my own break, after all, 75% of it is someone elses intellectual property. Come to think of it, of the 25% that is mine, atleast 50% of that I'd have to credit to the artists that I listen o that have influenced my playing. 

I believe that there are over 100 copywrites held for Beethoven's moonlight Sonata...none of them held by Beethoven himself.

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## Big Joe

To make the discussion of IP and collections a fair discussion BMI and ASCAP should be invited to participate. I have no interest personally in either organization, but I still feel public use of another's property is still wrong if we are not paying for the right. It does not matter how much you are being charged. If you read a book in public, someone paid for the book. It may not be the reader, but someone did. The same should be true with a band. If you want to play...for free or pay...someone should pay. When you think of it, the cost of the fee is pretty small, even for a jam session. You will spend 20 bucks to see a movie and don't complain. Why should we complain if it costs a few bucks to jam with friends where we can have a LOT more fun that sitting in a movie house? Again, it may be just my opinion but if any public playing is done it should be reasonable to pay the artist who wrote the song. How that is done may be another discussion. Most have chosen to use BMI and ASCAP or SESAC for that help. Is that the best way? I certainly don't know, but it is the only way it is being done at the current time. Rather than complain about the system, invent a better one and see what happens.

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## Alex of the North

Benignus, how would you describe someone who walks into your restaurant and shouts (in front of all your customers) that they're going to sew you for theft? How would you describe someone who walks in and threatens your wife until she breaks down in tears? How would you describe someone who calls your restaurant every ten minutes for several days in a row and then hangs up? When I say "goon," I really mean it. From our end it feels like an extortion racket.

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## mandopete

I think we're missing one of Ken's points, this is a *jam session*. #People are there just for fun. #For the most part there's no audience (at least not by design). If it wasn't for the fact that some of these jam sessions advertise their whereabouts I highly doubt ASCAP or BMI would even be aware they existed.

I fail to see how anyone's IP or copy rights are being infinged by a mere jam session.

BTW - we've inadvertently given them a pretty good idea of what jam sessions exist by posting them right here on the Cafe.

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## JimD

> I was just working on a break for 'Roll in my Sweet Baby's Arms' today. I downloaded a Tabledit file from Mandozine in the key of 'G' and wrote out the first 12 measures of the blues break, transcribing it to the key of 'A' note for note. I then completely changed the last 4 measures with my own ideas. Is this now my own intellectual property? Technically, I believe it is, but morally I'd have a hard time claiming that it's my own break, after all, 75% of it is someone elses intellectual property. Come to think of it, of the 25% that is mine, atleast 50% of that I'd have to credit to the artists that I listen o that have influenced my playing. 
> 
> I believe that there are over 100 copywrites held for Beethoven's moonlight Sonata...none of them held by Beethoven himself.


These are exactly the kind of statements that muddy the whole discussion. This time it took three whole days to sink to this level.

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## Alex of the North

I blame television for the decline of amateur music. Most people aren't even aware of these issues.

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## Jonathan Peck

> These are exactly the kind of statements that muddy the whole discussion. This time it took three whole days to sink to this level.


eh...so what was your contribution again? Oh right...nothing. BTW - if you were standing in front of me, you'd be wearing your mandolin as a hat

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## JimD

> eh...so what was your contribution again? Oh right...nothing. BTW - if you were standing in front of me, you'd be wearing your mandolin as a hat


How intelligent.

My contribution is this:

You don't convert a piece to your own intellectual property by changing the key and a few notes. The copyright law (which is still in effect by the way) clearly states that the right to create derivative works belongs to the holder of the copyright.

and this:

There are not over 100 copyrights on Beethoven's Moonlight Sonata.

If you don't know what you are talking about, stay out of the discussion.

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## JeffD

> This may have been asked already - there is so much here to digest - but what if a jam starts up and everybody is playing original tunes or the music was written by one of the players. Does it now become the responsibility of the owner of the establishment to know this is a jam session of original music? There are no royalties to collect and BMI, ASCAP, whatever doesn't have a leg to stand on.


I brought something similar to this up to BMI, what if the performers we had on Friday and Saturday nights only sang their own material or material in the public domain? What if they attested to that in writing and we posted it at the door?

BMI's response was something to the effect that it only took one mistake and we the venue were on the hook and could be sued. If the performer lead everyone in singing "Somewhere Over the Rainbow" for example, we were on the hook. Paying the fee was the only way to "guarantee" we were covered for such a slip up.

It sounded much like a protection racket to me.

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## Jonathan Peck

> My contribution is this:
> 
> You don't convert a piece to your own intellectual property by changing the key and a few notes. The copyright law (which is still in effect by the way) clearly states that the right to create derivative works belongs to the holder of the copyright.
> 
> and this:
> 
> There are not over 100 copyrights on Beethoven's Moonlight Sonata.
> 
> If you don't know what you are talking about, stay out of the discussion.


These are murky waters...good thing we have such an expert as yourself around. i really think that you should back off!! I really don't like your condesending know it all attitude. I will post when I like and respond to whom I want regardless of your snotty comments not to

"Works in the public domain pose a number of questions. When ASCAP or BMI surveys a performance of a traditional song it is assigned a much lower "weight" and the owner of the copyrighted arrangement receives less money than if the music was original. BMI pays 20% of the rate of original music and ASCAP 10%. This means that when the pie that is divided up, (ASCAP collects all the money and divides it up according to the results of their surveys) those who control the copyrights of arrangements of those public domain works will get less money and the shares that go to the non public domain music will be a little larger. Some people feel that the other 80% or 90% of the money that would have gone to the owner should belong to the American people or to some public fund. Others take issue with the whole concept of an arrangement of a public domain work, claiming that there technically is no such thing as public domain, since arrangements become property of their arrangers. This is certainly the case with centuries-old classical and folk music, whose copyrights have long since expired, but whose performances are being regulated by ASCAP and BMI as copyrighted arrangements. In fact, ASCAP has over 40 arrangements of Beethoven's Moonlight Sonata on file, and even more amazing, nearly 80 versions of Row, Row, Row Your Boat! Thus if you had a nightclub and no ASCAP license, and their spies caught someone performing one of those pieces, even though the song is in the public domain, since an ASCAP writer or publisher has copyrighted an arrangement of the song, it is conceivable you might still possibly be sued for infringement of copyright. (The promoter of a small bluegrass festival informed me that they were cited by ASCAP because a Bill Monroe song was performed: Monroe's music is all BMI, but the song in question, Uncle Pen, had been arranged and recorded by Ricky Skaggs, an ASCAP artist!)"

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## JeffD

> I was just working on a break for 'Roll in my Sweet Baby's Arms' today. I downloaded a Tabledit file from Mandozine in the key of 'G' and wrote out the first 12 measures of the blues break, transcribing it to the key of 'A' note for note. I then completely changed the last 4 measures with my own ideas. Is this now my own intellectual property? Technically, I believe it is, but morally I'd have a hard time claiming that it's my own break, after all, 75% of it is someone elses intellectual property. Come to think of it, of the 25% that is mine, atleast 50% of that I'd have to credit to the artists that I listen o that have influenced my playing. 
> 
> I believe that there are over 100 copywrites held for Beethoven's moonlight Sonata...none of them held by Beethoven himself.


The real issue is not whether its your intellectual property now or not. You may well be correct that you have now created a new piece of music.

The real issue is, do you have enough money to defend yourself when you play it somewhere and BMI or whoever claims it is their client's and wants the money.

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## JeffD

> If you read a book in public, someone paid for the book. #It may not be the reader, but someone did.


But if I pay full price for a CD, I am not allowed to use it as background music in my club without paying, a second time, for the use of the music.

The only legal use of that CD that my purcase allows is to listen to it at home alone.

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## Steve Cantrell

Easy, fellas. No reason to resort to name-calling or threatened mandolin-hat-making.
Alex and anyone who gets this treatment has a legit gripe, especially if he could in some way document some of his claims--then he should get the lawyer with the sharpest teeth he can and sit down for a plate of somebody. Sounds like these guys should be wearing pinky rings.

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## JimD

So, Captain -- where did you get that quote in your last post from?

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## JimD

> In fact, ASCAP has over 40 arrangements of Beethoven's Moonlight Sonata on file, and even more amazing, nearly 80 versions of Row, Row, Row Your Boat!


Arrangements -- not the composition. This is an entirely different question. Beethoven (or rather, his estate) no longer would own the copyright because it would have long ago expired.

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## Jonathan Peck

> The real issue is not whether its your intellectual property now or not. You may well be correct that you have now created a new piece of music.
> 
> The real issue is, do you have enough money to defend yourself when you play it somewhere and BMI or whoever claims it is their client's and wants the money.


If threatened with a lawsuit, no I think it would be a watse of resources to defend it...that is time and money. Curiously, if I were to register my arrangement with ASCAP or BMI and record it, would I then have the ten ton gorilla on my side instead of on my back?

" since an ASCAP writer or publisher has copyrighted an arrangement of the song, it is conceivable you might still possibly be sued for infringement of copyright. (The promoter of a small bluegrass festival informed me that they were cited by ASCAP because a Bill Monroe song was performed: Monroe's music is all BMI, but the song in question, Uncle Pen, had been arranged and recorded by Ricky Skaggs, an ASCAP artist!)"

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## groveland

> since an ASCAP writer or publisher has copyrighted an arrangement of the song, it is conceivable you might still possibly be sued for infringement of copyright.


Hmmm.... It is my understanding that the mere act of creating a work makes you the copyright holder and you have/own the "copyright". Registering that copyright gives you an edge in the courts when someone contests that copyright. The point being, you can be sued for infringement whether the work is registered or not.

That's my understanding. Let's get a lawyer in here.

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## jaco

Time to bring this thing back to the real world. I play every other weekend with my friend Joel at the Island Hotel. The town has a population of about 700. He's 74 years old and a brilliant pianist. We play jazz standards( Miles, Monk, Evans, etc.) The room we play in seats about 15 people on a crowded night. The bar in front, 30 if it's packed. Some nights there may be two there, some nights more. The Hotel rents 10 rooms at $90.00 a night. Joel gets $80.00, I play for free. We play one night a week on Friday, no admission. ASCAP came calling demanding payment and threatening lawsuits etc.. This will probably be my friend Joel's last gig. It's all he has to look forward to. Sorry to sound so sentimental but this is what is happening out there in the real world. It comes down to this. Is this fair?

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## Jonathan Peck

> So, Captain -- where did you get that quote in your last post from?


Sorry, I thought that the article might have been linked to earlier in the thread. It's from the woodpecker site

ASCAP & BMI - Protectore of Artists or Shadowy Thieves?

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## JimD

> Time to bring this thing back to the real world. I play every other weekend with my friend Joel at the Island Hotel. The town has a population of about 700. He's 74 years old and a brilliant pianist. We play jazz standards( Miles, Monk, Evans, etc.) The room we play in seats about 15 people on a crowded night. The bar in front, 30 if it's packed. Some nights there may be two there, some nights more. The Hotel rents 10 rooms at $90.00 a night. Joel gets $80.00, I play for free. We play one night a week on Friday, no admission. ASCAP came calling demanding payment and threatening lawsuits etc.. This will probably be my friend Joel's last gig. It's all he has to look forward to. Sorry to sound so sentimental but this is what is happening out there in the real world. It comes down to this. Is this fair?


Bottom line:

The music you were performing belongs to the copyright holder. It must be licensed and, yes, that is fair.

I am sorry for your friend, but that is the reality.

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## JimD

> ASCAP & BMI - Protectore of Artists or Shadowy Thieves?


I have seen this site before. There is some very good information on it but there are also some outright mistakes:




> Actually, all my songs are copyrighted, without assistance from ASCAP or BMI. Itís easy to do. Just fill out a form, write a check for $30, and send a copy of the work to be copyrighted. These days the forms are available online at http://www.copyright.gov/forms. Form TX is for literary works, and Form SR is for sound recordings. I copyright an entire cassette or CD at a time rather than pay $30 every time I write a song. I specify for each track which of the following I am copyrighting: words, music, arrangement and/or performance. I state on my CD covers that my recordings are copyrighted in my name. All rights reserved. This means exactly what it says. As the exclusive owner of the copyright, I enjoy the exclusive right of public performance and, BMI notwithstanding, the exclusive right to profit from their performance.


Just as an example -- if you check back several posts, Groveland has it correct -- the simple act of creating the work gives the creator the copyright.

Try http://www.copyright.gov/ if you want information.

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## jaco

Jim, I appreciate your posiion on this. The problem will be that the smaller music clubs that promote live music, yours, or anyone else's will not be able to afford it. Without regulation of the BMI/ASCAP corporate/legal structure as we know it today they are helpless. If there is no arbitration by a governing body overseeing BMI/ASCAP; they pretty much call the shots. The day that the small performance clubs/halls/performance centers whatever, cannot afford live music will be a sad day for all musicians whether you are a member of ASCAP or not.

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## August Watters

> Bottom line:
> 
> The music you were performing belongs to the copyright holder. It must be licensed and, yes, that is fair.


Exactly -- licensing is supposed to be the fair way to get the authors paid. #Fees are supposed to be commensurate with the size of business, so in the above example of a tiny hotel, the fees should be small enough that they don't put the hotel out of business, or cause your friend to lose the gig. What's not fair, I think, is the inflated claims made by the phone solicitors, who have no idea how big the business actually is, and who seem more interested in getting the biggest payment possible than in accurately assessing the fair liability of the establishment. I have no direct experience, but through the years have heard similar stories from three different restaurant owners.

Why not just play the same tunes, but omit or change the melodies? Chord progressions are not copyrightable, and a good jazz player knows how to use the same chords and recompose a new tune based on the old. Consider them original tunes. It's a time honored jazz tradition.

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## JimD

Well, obviously I'm in the minority here. I don't know why I bother even reading some of these threads. 

For the most part they are so laden with half-truths, inaccuracies, hearsay, urban legends and propaganda for a society without intellectual property that to find any real, useful information and constructive dialogue in them is nearly impossible.

There are also some good points being made by people whose hearts are in the right place but the whole of the discourse is so polluted that there is no fixing it.

I'll step aside now and find better things to do with my time.

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## JeffD

> #When you think of it, the cost of the fee is pretty small, even for a jam session. #You will spend 20 bucks to see a movie and don't complain. #Why should we complain if it costs a few bucks to jam with friends where we can have a LOT more fun that sitting in a movie house?
> 
> 
>  #Again, it may be just my opinion but if any public playing is done it should be reasonable to pay the artist who wrote the song. 
> 
> 
> #How that is done may be another discussion. #Most have chosen to use BMI and ASCAP or SESAC for that help. #Is that the best way? #I certainly don't know, but it is the only way it is being done at the current time. 
> 
> 
> #Rather than complain about the system, invent a better one and see what happens.


Firstly, the justice of a fee is entirely independent from the affordability of the fee. In 7th grade I gave the local thug my lunch money because it seemed a small price to pay to left alone.

Secondly, nobody would deny the artists their just payments. But should BMI go around taking money from everyone on the off chance that someone legitametely owes it?

Thirdly, I think what you say here is usefull, to separate what BMI is ostensibly trying to do from the methods they use. They are probably two different discussions.

Lastly you can invent all you want, but BMI ACAP et. al. have the most to lose in changing things, so it is a bit like the telling the ant to just move that rubber tree plant.

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## JeffD

> Bottom line:
> 
> The music you were performing belongs to the copyright holder. It must be licensed and, yes, that is fair.
> 
> I am sorry for your friend, but that is the reality.


I agree. And this is where it would be usefull to separate the two discussions - intellectual propery rights of artists - which I have no problem with, and the strong arm procedures of BMI ASCAP et.al. which I have a problem with.

You and I would probably agree that the hotel should pay something when owned music is played at the piano bar.

But we might also agree that the hotel bar shouldn't be required to pay BMI, et. al. just because they own a piano and lets say allowed people to play it. They have gone after places for not much more than that.

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## Scott Tichenor

Let's be sure we keep things from getting overly personal here. I've been reading these discussions on the web/listservs for well over ten years. I've yet to see this discussion come to a resolution that everyone agrees on, but I have seen a lot of friendships lost and folks that just walked away in disgust... like that solved something. I've had my own run-in with BMI and this web site so I have a bit of experience. They neither bother me, nor do I fear them, but I did get a good glimpse at how savvy they are. I can't say I'm impressed.

What I don't wish to see is this getting to a boiling point where the urge to win an argument or prove a position means unloading everything you have.

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## Mando Medic

Well said Scott! I again would like to just concentrate on the issue. Jam sessions. They may be a public exibibition but not a paid one. That's where I have trouble with this issue. I have written to both ASCAP and BMI asking for their position on this and have yet to receive a reply. When I do, I'll be glad to share it with everyone. I am also waiting for IBMA to state their position on this one issue. I don't feel that we can win much from either organization, but I will pursue this one issue as it's just too far over the line. I am not convinced that a jam session in a non commercial venue warrants a license for intellectual property. Kenc

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## Larry Simonson

To call what many do in a jam session a "performance" is quite a strech, most are just "practicing". # Do either the courts or ASCAP/BMI distinguish between the two modes of playing an instrument?

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## mandopete

> I again would like to just concentrate on #the issue. Jam sessions. They may be a public exibibition but not a paid one.


Ken,

Many of the jam sessions around here are not even performances in the sense that no one gets up on stage. I wonder if that adds any complexity to the issue.

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## jaco

I'll post Harvey Reid's response since he was kind enough to respond. 


"My understanding is that "public performance for profit" is a key to it, and since no one is charging money or getting paid, or if no food or drinks are served for profit it might be OK. There were 80 versions of Row Row Row Your Boat in the ASCAP catalog when I checked a long time ago. Not logical as those folks observed with Soldiers Joy.

Their lawyers are vicious, and one of the few "rights" you have is to petition to prove fairness of the fees, and the burden of proof is on them to show that similar establishments are paying the same rate. They always charge way too much, and yes, Britney and Elton John get all the $. You might consider renaming the whole thing a "Picker's School" since education is exempt, and churches during worship. Though even that is tricky.

Be careful-- they are for real, and hardball is not an option. And a local club in my area just got taken to court by SESAC who now controls Bob Dylan catalog plus some others like Don Henley"

Chordally yours,


Harvey Reid

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## kudzugypsy

i would think that someone could start a BMI style offshoot that dealt entirely with BG/Folk/Americana styles and when the BMI agents come in, tell them no thanks, we have already paid our fees to an organization that actually sends the money to OUR songwriters. i'm not up on all this, but i dont see why these 2 organizations have a monopoly on ALL music and its distribution of royalties.
if i was having a songwriter nite and they came in, i'd say ok, where is MY check for the songs i've written and performed here?

i remember hearing the history of the BMI/ASCAP feud on NPR one day - seems that during the 40's this actually happened that the industry split in two because of the unfair tactics of BMI. why not now - 60 years later?

oh yeah - and what happens when they show up at IBMA and tell all the pickers they cant jam because the hotel doesnt have a license for public music - or if they do perform, it has to be in the bar and they cant have all these *sponsored* private jam rooms, etc.

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## Pen

It seems the laws are ironclad. #It's their choice what they do.

If they truly are targeting events like jams - and working against musical espressiion - aren't there plenty of professional musicians that might take issue with this? #I'd like to think that BMI/ASCAP would focus on what really makes them money instead of picking on the little guy. #How much do they really make yearly from coffee houses and jams? #I know some bars where my band plays that don't pay any yearly dues (they have no clue BMI/ASCAP even exist). #Those are situations where I believe a fee SHOULD be paid. #I'm not motivated to explain the payment process as none of the $$ will go to the rightfull writer - we play nothing you'd see on the charts!).

If there was some sort of PR push, backed by famous names, to point out the ludicrousy of this miss-informed focus, I don't know why they wouldn't call off the dogs. #It's hardly their bread & butter. #In fact, I would say their lackey's would be more effective by focusing on large live venues. #Not just ones in a convienant, large metropolitan area. #I guess it's easier to bother 10 coffee houses within a 10 mile radius than it is to follow up on a bar 40 miles outside the city.

Finding a group of musician's to spearhead a push against an organization that cuts their checks may be hard I guess. #I just wonder about the skewed focus. #From a business perspective, it sounds like they are focusing efforts in a poor direction.

On another note, this is the part I just can't understand (and has been alluded to). #If I purchase a book of poetry and use quotes from it in public - I've never heard of anyone taking issue. #If I buy a CD, learn a song, and play it at a local jam, suddenly the artist is getting the short end of the stick (well - BMI/ASCAP is). #It makes absolutely no sense to me. #I've paid royalties by buying the CD. #No one is financially benifiting. #Telling me that I can learn a song, but not play it for ppl goes against everything that is American. #And yes, by shutting down jams & coffee houses, I may not be able to play it for anyone.

Anyway, I'd be curious to hear the rational behind a company targeting the little guy. #Cause it makes them (and the musicians they work for) seem awful greedy. #I've been anti-piracy until now. #Seems like they're all about sticking it to the musical heart of the country. #Somehow, it doesn't bother me as much to burn a CD for a friend.

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## billhay4

When you create an act of creativity, you are giving something to the world. The only way this gift can be given and received is freely.
The act of publishing or recording is separate from the act of creativity and is a commercial transaction.
However, the creative act, to be a gift, must be exchanged with others. A certain latitude must exist here for creative acts to be spread. The fact that this also spurs the commercial act (buying of the product) is often neglected. 
Most musicians and writers love to see their work quoted and sung. What they don't like is systematic financial benefit to another from their work which, by the way, is exactly what BMI and the others do. The percentage of royalties actually paid to writers and composers is subject to great debate and should be the real subject of a discussion like this.
IMHO.
Bill

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## Jerry Byers

I just find this ludicrous. Next you know, they'll be busting down the door whenever somebody sings Happy Birthday at their kid's birthday party. And are they going to start intimidating the Xmas caroler's around the holidays demanding money?

This is exactly the kind of thing that BG associations should be taking up the hill to challenge this nonsense.

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## John Flynn

My Dad, who was one tough SOB back in the day, used to supervise his own construction projects and he did not use union labor. Occasionally, he would have union thugs show up on site and say, "I need to see your union cards." Dad would walk right up to the head union guy and hand him his Kentucky fishing license. The union guy would invariably say some version of, "What the heck is this?" My Dad would reply, "Oh, that's a Kentucy fishing license. That gives me authority to do anything I think I think I'm big enough to do. Now get off my site." This happened multiple times and surprisingly, they would always leave and never hassle him again. Some of these venues getting hassled by BMI need to get Kentucky fishing licences!

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## Mando Medic

Jerry, 
I agree with you 100%. I thought that by doing a story on it and submitting it to Bluegrass Unlimited with a plea at the end to all bluegrass associations, that that might be a wake call for this to happen. Problem is that BU doesn't think this story is a good "fit" for them. I will shop it to BN and others as well. Meanwhile, if any of you reading this belong to a bluegrass organization, including IBMA, I would urge you to ask them to get involved. They can contact me if they need further information, or go directly to IBMA. Kenc

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## Tighthead

Have there been any well-known pro bluegrassers who have expressed an opinion about this?

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## mandocrucian

What exactly is the compensation method for these _"monitors"_ or _"fee enforcement agents"_ or whatever they call themselves? #Are they paid a flat salary? Or do they worl on a salary *plus commission on revenues collected*? (like insurance agents do) The more agressive/ruthless the agent is, the more money they would make? This could easily explain why they tend to leave the dangerous venues (biker bars, mob-connected clubs, ghetto joints) alone while picking on the easily intimidated Ma & Pa Kettle and Kaspar Milktoast.

<s>Stalin</s> Mao had it right about _"power grows out of the barrel of a gun."_ Ultimately, it _always_ comes down to coercion. (Dictators and tyrants of all varieties can sometimes be _so candid_ about how things actually work.) 

_"Education is a weapon whose effects depend on who holds it in his hands and at whom it is aimed."_ - Stalin

So strip them of their anonymity. Let them think about "they know who I am and where I live".

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## Mando Medic

I don't know how they are compensated. There was a post on this subject from someone from ASCAP, perhaps that person could enlighten us. Kenc

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## Michael H Geimer

> Benignus, how would you describe someone who walks into your restaurant and shouts (in front of all your customers) ... threatens your wife until she breaks down in tears... calls your restaurant every ten minutes for several days in a row and then hangs up? When I say "goon," I really mean it.


What would I do? I'd call the police. There are laws that protect you and I from threats and harassment. I'd try to get a restraining order on that rep personally if he was truly that abusive. 

I'd also try to catch someone like that on video and YouTube his sorry act!

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## Jonathan Peck

I just watched a story on 20/20 or 48 hours about agressive debt collectors. It had plenty of recordings of agressive acts by collectors and one ex-collector spoke about how he viewed the debtor is the enemy. You might try writing into one of these programs to see if they'd be interested in doing an investigation/story on the subject of IBMA/ASCAP licensing tactics.

-jonathan

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## Michael H Geimer

There was a story in the Bay Area recently about a blogger-dude who was taking audio snipets from one of the many angry-shock-jock-type radio morning shows. He was sending the clips to the show's sponsors. When advertisors began hearing for themselves the innane, immature comments they sponsored ... well, the shows advertising revenue dried up.

Crazy thing is, the station attempted to use the Digital Millenium Copyright Act to claim he was violating copyright by posting his story on his blog.

I think our own exposure campaign is in order here. Collectively we ought to be able to catch a rep on video, mid-tirade. It should only take a few goons-on-vid posted to the Internet before things really took off.

If these guys are as awful as the stories make them out to be, this shouldn't be too tough. Imagine how quickly the big popular artists would distance themselves from the whole venue collection issue if the public could see the dirty side of the business.

Look what happened when the RIAA finally started suing individuals for downloading music. I'm not saying downloading is OK ... just that suing was a huge PR mistake for the RIAA.

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## Dave Dearnley

> This may have been asked already - there is so much here to digest - but what if a jam starts up and everybody is playing original tunes or the music was written by one of the players. Does it now become the responsibility of the owner of the establishment to know this is a jam session of original music? There are no royalties to collect and BMI, ASCAP, whatever doesn't have a leg to stand on.


Here's making a stick situation even stickier:

If I am a member of ASCAP, I am granting them the exclusive right to represent me. Now lets say I get a gig playing at a venue that has not paid a license. #As far as I understand the representation aggrement, I can't perform even original material as I have given ASCAP exclusive representation rights. #It doesn't matter if I'm playing original material or that of another artist with a representation agreement. #Or does it?

From the ASCAP web site a definition of public performance:

A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.) A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet. Generally, those who publicly perform music obtain permission from the owner of the music or his representative. However, there are a few limited exceptions, (called "exemptions") to this rule. Permission is not required for music played or sung as part of a worship service unless that service is transmitted beyond where it takes place (for example, a radio or television broadcast). Performances as part of face to face teaching activity at a non-profit educational institutions are also exempt. 

That sounds like most jam sessions would be considered public.

Dave

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## Dave Dearnley

> Most musicians and writers love to see their work quoted and sung. What they don't like is systematic financial benefit to another from their work which, by the way, is exactly what BMI and the others do. Bill


Musicans join BMI or ASCAP of their own free will and request and agree to that representation.

There is an alternative:

http://creativecommons.org/

Dave

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## JeffD

> If I am a member of ASCAP, I am granting them the exclusive right to represent me. Now lets say I get a gig playing at a venue that has not paid a license. #As far as I understand the representation aggrement, I can't perform even original material as I have given ASCAP exclusive representation rights.


I didn't know that. Wow. 

That doesn't seem reasonable - they represent you, they don't own your music.

Oh well, like so many, many other things, reasonable doesn't seem to have much to do with it.

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## Dave Dearnley

> Originally Posted by  (String Fever @ Jan. 30 2007, 06:53)
> 
> If I am a member of ASCAP, I am granting them the exclusive right to represent me. Now lets say I get a gig playing at a venue that has not paid a license. #As far as I understand the representation aggrement, I can't perform even original material as I have given ASCAP exclusive representation rights.
> 
> 
> I didn't know that. Wow. 
> 
> That doesn't seem reasonable - they represent you, they don't own your music.
> 
> Oh well, like so many, many other things, reasonable doesn't seem to have much to do with it.


They don't own your music. #And it's reasonable when you consider that you grant them the right to represent you. #You can perform your music anywhere, it just doesn't give the venue an avenue to evade the licensing fee based on the fact that you're only performing original music.

As far as I know. #But then if I knew anything, I would've bought that 1934 D-18 back in the 70s.

Dave

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## dtb

so next......thry'll be dropping by my basement jams and asking for trouble.......we'd beat'em to death with pac-rim mandos and let the dogs have at'em.

Dan

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## ApK

If you perform copyrighted material in a public venue, you need license. Profit is irrelevent. For material contracted with BMI or ASCAP, their fees covers the license for everything in their catalog. I don't see how this is strong arming or unfair or anything else (you could argue that the fee structure and calulations are unfair, but not the concept.) They are doing what their members have contracted them to do.
I don't understand how public domain songs like Soldier's Joy could be covered here, though.

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## JD Cowles

Not trying to stir the pot here, but this is a lot to digest. If this has already been asked, forgive me fro skimming the last 5 pages of posts. Does this apply to parking lot/campground picks at festivals too? Doesn't get more public than that.

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## ApK

I believe I could come up with valid arguments for both sides. Actually, off the top of my head I can think of four distinct positions I could argue, but since I'm not a lawyer, I don't know which of them would be most likely to be accepted in court....

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## Walter Newton

> Does this apply to parking lot/campground picks at festivals too?


Just a wild guess but I'd imagine the fees paid by the festival organizers would cover any "performances" (stage or jam) that go on at the festival.

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## arbarnhart

> Can anyone share information with me about know venues or jams that have ceased because of BMI intervention? Or venues that complied after legal pressure? Thanks, Ken Cartwright


I am awfully late to this party, but I can give you a specific one that actually makes no sense at all. On this page:
http://www.ncfolk.net/sessions/
The fellow that holds the first session listed used to also have one on Sunday afternoons at Mr Toad's Coffee House in Cary, NC. They were strong armed and threatened about getting a license even though this was a traditional Irish session and they play nothing but PD music.

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## mythicfish

One way to deal with unreasonable people involves a sock full of sand ...

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