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Thread: What's in public domain these days?

  1. #26
    Registered User Charlie Bernstein's Avatar
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    Default Re: What's in public domain these days?

    Quote Originally Posted by James Vwaal View Post
    Charlie, you should check on some of the W.C. Handy tunes. If I remember correctly, both "St. Louis Blues" and "Beale Street Blues" are off copyright, for example.
    Good to know. Thanks!
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  2. #27
    Registered User Charlie Bernstein's Avatar
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    Default Re: What's in public domain these days?

    Quote Originally Posted by Chuck Leyda View Post
    That's awesome! Keep it on the down low or someone special will show up and request "Into the Mystic".
    We play it at other venues. We won't at this one.

    Van's a nice guy. But his BMI pals? Watch out!
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    Default Re: What's in public domain these days?

    Quote Originally Posted by Bill McCall View Post
    That’s not correct. The copyright is with the government, you’ll notice I stated ‘not contracted to a license agency’, so they have no right or claim on any aspect of your copyright.

    Play on.
    I stand corrected, thanks.

    In the past we have been shut down playing old time tunes. BMI is copyrighting the arrangements, and had more than 7 pages of Mississippi Sawyer arrangements copyrighted. A tune is a tune and that should be in public domain, unless you modify it, then it is no longer the old time tune you are playing to preserve and enjoy them.
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  6. #29

    Default Re: What's in public domain these days?

    Quote Originally Posted by pops1 View Post
    I stand corrected, thanks.

    In the past we have been shut down playing old time tunes. BMI is copyrighting the arrangements, and had more than 7 pages of Mississippi Sawyer arrangements copyrighted. A tune is a tune and that should be in public domain, unless you modify it, then it is no longer the old time tune you are playing to preserve and enjoy them.
    I'm sure this has been covered here before, but, there's still a lot of [continuing] terminology misuse here. "Copyright" is literally established when you write down or record your original work. So, a venue saying "no copyrighted songs" is "literally" saying you can't perform anything unless it's in the public domain (and has never been covered and re-copyrighted since). So, if you have an original song and wrote it down to provide a chart to other band members, it is now copyrighted, and unless you give away the rights, it's your copyright. (Don't try to explain this to the club. Just smile and say "Ok.")

    Copyright *registration* is only done at the U.S. Copyright office. That is where the legal backing for copyright claims starts and ends. Most original music does not need to go through that step, but even if the owner registers the copyright, it doesn't mean squat when it comes to invoking the wrath of BMI or ASCAP because they do not scour the copyright registrations looking for new stuff to add to their list. It's only if some entity has actually signed up with them to go do the police work of collecting royalties. (They will expect that the copyright is registered.) Note, this is only in the USA. Other countries have their own PROs and copyright laws. PROs do *not* register a copyright, at least not in the USA.

    Suggested reading:
    https://copyright.gov/what-is-copyright
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    https://help.songtrust.com/knowledge...ganization-pro
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  8. #30
    Fingertips of leather Bill McCall's Avatar
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    Default Re: What's in public domain these days?

    Quote Originally Posted by pops1 View Post
    ..........In the past we have been shut down playing old time tunes. BMI is copyrighting the arrangements, and had more than 7 pages of Mississippi Sawyer arrangements copyrighted. A tune is a tune and that should be in public domain, unless you modify it, then it is no longer the old time tune you are playing to preserve and enjoy them.
    I certainly agree with that.
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    Registered User Mandobart's Avatar
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    Default Re: What's in public domain these days?

    There is some confusion expressed here about copyright. A work (song, play, book, etc.) can be granted a copyright for the intellectual property. When we talk about PRO's we're talking about performance rights. For any public venue (business, church, festival, school, etc.) to have the latter performed they are required to pay a licensing fee to the applicable PRO. IF you want to include someone else's intellectual property on a CD, in a film, or other recorded format that's a different process.

    If your own intellectual property is registered with one of the PRO's then any venue you might perform it at is required to pay licensing fees to that PRO.

    The whole thing is mildly ironic when you know that the only reason BMI exists is because radio stations didn't want to pay ASCAP fees back in 1939....

    And the licensing fees collected by the PRO's are typically awarded to member artists based on radio airplay. Does anyone think club owners that pay their fees are also judiciously keeping a log of every time a band plays Mustang Sally or Walls of Time? No, all those fees for public performances of Angel From Montgomery are going to Taylor Swift and Justin Bieber, not Fiona and the boys.

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  12. #32
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    Default Re: What's in public domain these days?

    Quote Originally Posted by Mandobart View Post
    There is some confusion expressed here about copyright. A work (song, play, book, etc.) can be granted a copyright for the intellectual property. When we talk about PRO's we're talking about performance rights. For any public venue (business, church, festival, school, etc.) to have the latter performed they are required to pay a licensing fee to the applicable PRO. IF you want to include someone else's intellectual property on a CD, in a film, or other recorded format that's a different process.

    If your own intellectual property is registered with one of the PRO's then any venue you might perform it at is required to pay licensing fees to that PRO.

    The whole thing is mildly ironic when you know that the only reason BMI exists is because radio stations didn't want to pay ASCAP fees back in 1939....

    And the licensing fees collected by the PRO's are typically awarded to member artists based on radio airplay. Does anyone think club owners that pay their fees are also judiciously keeping a log of every time a band plays Mustang Sally or Walls of Time? No, all those fees for public performances of Angel From Montgomery are going to Taylor Swift and Justin Bieber, not Fiona and the boys.
    Not that I have a mini-poodle in this fight, but why am I not surprised?
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  13. #33
    Registered User Charlie Bernstein's Avatar
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    Default Re: What's in public domain these days?

    Quote Originally Posted by pops1 View Post
    . . . In the past we have been shut down playing old time tunes. BMI is copyrighting the arrangements, and had more than 7 pages of Mississippi Sawyer arrangements copyrighted. . . .
    How did they know you were playing someone else's copyrighted arrangement? How did they know whose?

    =O.
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  14. #34
    Registered User Charlie Bernstein's Avatar
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    Default Re: What's in public domain these days?

    Quote Originally Posted by keith.rogers View Post
    I'm sure this has been covered here before, but, there's still a lot of [continuing] terminology misuse here. "Copyright" is literally established when you write down or record your original work. So, a venue saying "no copyrighted songs" is "literally" saying you can't perform anything unless it's in the public domain (and has never been covered and re-copyrighted since). So, if you have an original song and wrote it down to provide a chart to other band members, it is now copyrighted . . . .
    Good point. Whenever I type up a new song, I put the title on the first line and on the second say "copyright Leon Fullerton" (my pen name).

    I've also sent a few to the copyright office, and you're right, that's what I sloppily think of as copyrighting.

    But when I write a new arrangement (usually a radical rearrangment), the second line says something like: "Bukka White (Leon Fullerton arrangement)." I wouldn't dream of copyrighting my arrangements. As far as I'm concerned, even if I alter a cover beyond recognition, it's still a cover, and the writer is still the writer.

    In my case (a lowly pub singer), the likelihood that anyone would copy my arrangements is zip-point-doodly-squat. (And in the freakishly unlikely event that it ever happens, I just don't care.)

    Thanks for those links!
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  15. #35

    Default Re: What's in public domain these days?

    Quote Originally Posted by Charlie Bernstein View Post
    How did they know you were playing someone else's copyrighted arrangement? How did they know whose?
    They don't know and don't care. They have an army of lawyers and nobody can afford to battle them. Even if you did happen to have a recording of your performance, in reality, it probably is more similar to most arrangements than different, i.e., still a losing case.

    Yes, it's a lousy system that is tilted heavily against small players.
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  17. #36
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    Exclamation Re: What's in public domain these days?

    The Venue has the assets, so the ASCAP/BMI folks go to them for the fees .

    if they're cheap/low budget for that , they demand you play public domain material .. buck shifting...

    Players are not fixed assets ... they don't have much to fine/sue, as a penalty.

    BMI sent people thru town here a couple years ago the girls @ the topless bar

    Independent contractors from the club's perspective, to sidestep the issue,

    were cited for the recordings they danced to, for tips ...


    It's that Business part of the Music Business..

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  19. #37

    Default Re: What's in public domain these days?

    Let me say, has the world changed overnight, or something? I've played both cover songs and originals in theaters, outdoor venues, private parties, night clubs, and beer joints for over 40 years and have never heard this request.......ONLY ONCE, in Europe, did I have to submit a set list of songs and their composers that I would be performing -- obviously the venue was big enough to pay royalties to those concerned....nothing negative resulted from this, for the record.

    I would say I agree the writers of the songs deserve payment, but, in reality, nobody from the library of congress is sitting in the audience with a clipboard. The bar owners might fear a knock on the door or maybe just want to avoid extra paperwork, but in reality, the amount of the royalties would be pennies per song, and sure, if the bar has cover bands every night that might amount to $200-300 annually....

    Or maybe they just want to promote emerging talent!

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  21. #38
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    Default Re: What's in public domain these days?

    Mostly the money from ASCAP and the others goes to the top 100 sellers. If I play some lowly songwriter they don't get paid. It's not a fair system. I told ASCAP decades ago that there should be a list of song the performers play so the correct people can get paid. They told me the would be cost prohibitive. I told them they don't have a viable business. It's not fair, it is what it is. I have a radio show, but they only audit 4 times a year for copyright payment. I try to play self released as much as I can, even tho it is discouraged. The rest of the time the music I play doesn't see a penny for their music. Had a friend that plays constantly, toured with Odetta for the last two years of her life. Plays Europe, Italy, etc solo. Said he got a check for 7 cents once even tho he plays a lot of original material. I know he can apply to them for payment, don't think he does, it's just the way the system works.
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  23. #39
    Registered User Mandobart's Avatar
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    Default Re: What's in public domain these days?

    Quote Originally Posted by Jeff Mando View Post
    Let me say, has the world changed overnight, or something? I've played both cover songs and originals in theaters, outdoor venues, private parties, night clubs, and beer joints for over 40 years and have never heard this request.......ONLY ONCE, in Europe, did I have to submit a set list of songs and their composers that I would be performing -- obviously the venue was big enough to pay royalties to those concerned....nothing negative resulted from this, for the record.

    I would say I agree the writers of the songs deserve payment, but, in reality, nobody from the library of congress is sitting in the audience with a clipboard. The bar owners might fear a knock on the door or maybe just want to avoid extra paperwork, but in reality, the amount of the royalties would be pennies per song, and sure, if the bar has cover bands every night that might amount to $200-300 annually....

    Or maybe they just want to promote emerging talent!
    PRO fees are based on how many times per month/year the venue provides entertainment of ANY kind (recorded, radio, live, amplified, unreinforced, or other) to the PUBLIC. So a wedding, funeral, private part, etc. is exempt. The fees have existed since the 1930's or earlier. For any public performance venue this has always been a cost of doing business like insurance, utilities, staff, etc.

    The licensing fees are WAY MORE than a few hundred bucks per year. More like several thousand for a typical bar offering entertainment 5 or 6 nights per week.

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  25. #40
    Innocent Bystander JeffD's Avatar
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    Default Re: What's in public domain these days?

    This is all based on my memory of way back in the way back.

    I fought this out with ASCAP BMI many several years ago, when I ran a coffee house. Things might have changed since then but at the time it the hall marks of a shake down.

    They wanted the coffee house to pay a licensing fee, for which we would get a sticker for our front door, and the promise they would never bother us no matter what was played on our stage.

    We tried to negotiate a bunch of ideas.

    They would not accept a posted notice that all performers are required to play public domain.
    They would not accept a signed document from from each performer that what they play is in the public domain.
    They would not accept the venue making and keeping a log of tunes performed that they could inspect.

    They claimed that the would send representatives, unidentified and without notice, to listen to our shows at random times and gig us if and when an owned tune (owned by an artist they represent I suppose) was performed. They explained that this included our old time jam on Tuesday nights, our bluegrass jam on Monday nights, and of course, anytime we played a CD for background music between performance sets at a performance or during "dead" time.

    They said that all this could be avoided by paying a monthly fee of something north of $800.00 (late 80s early 90s money). This would have destroyed us.

    I asked the basis of the fee, how did they determine how many owned tunes were being performed, etc., for which there was no clear answer. I was looking perhaps for some categories of coffee houses with assigned fees, categories based on verifiable estimates of attendance or maybe surveys of the past several years of performances, something. No, nothing.

    It seemed to me at the time (my own conclusion) that they were fishing for a number we would pay without complaint, and by the time I was fed up they were talking about around $200 per month, (late 80s early 90s money). I got fed up, as I remember, when I explained our always precarious financial situation, and the ASCAP BMI representative asked me "so how much can you pay?"

    The coffeehouse went on without paying "protection" and without limiting performers choice of music, but with yearly angry calls from BMI ASCAP as if we had never talked before.

    I did see other coffee houses and venues with ASCP BMI stickers on their doors, now that i was paying attention to it.

    "My" little coffee house died eventually, not from anything related to this issue, but from the general culture moving away from bohemian coffeehouses to formal espresso high end coffeehouses.

    This is my best recollection of the events and my feelings at the times. I might have could have handled it better or at least more effectively. No doubt.

    I share it for entertainment value more than for information and certainly not for advice. I have no idea how these things occur these days, or how I would handle it these days. And i especially don't know how you should handle it.

    You being an artist, you being a venue, you being you.
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  27. #41
    Registered User Charlie Bernstein's Avatar
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    Default Re: What's in public domain these days?

    Quote Originally Posted by JeffD View Post
    . . . "My" little coffee house died eventually, not from anything related to this issue, but from the general culture moving away from bohemian coffeehouses to formal espresso high end coffeehouses. . . .
    Yup. Times changed. I heard a pagan being interviewed on the radio once twenty or thirty years ago. The host asked him what the difference was between pagan and New Age.

    He said, "A decimal point on your annual income."

    Goodbye coffee houses, hello espresso bars.
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  28. #42

    Default Re: What's in public domain these days?

    Quote Originally Posted by Chuck Leyda View Post
    I wouldn't contact the PRO. They are pretty aggressive about shutting down places that are original/public domain. They've sent folks to request non public domain songs at said venues. They tried to take a grocery store to court because a lady who was employed there was singing songs as she stocked the shelves. They sued a horse barn that had classical music playing in the barn for their employees. Pretty hardcore stuff. For a lot of the smaller pub/coffee houses the amount of money they ask for is prohibitive. Most of them just stop hosting live music.

    They backed off this one but only after they got a ton of bad press.
    http://news.bbc.co.uk/2/hi/uk_news/s...al/8317952.stm
    My understanding is that it varies a LOT by location. It's up to the agents for an area how aggressive to be. But I believe they're incentivized to squeeze as much revenue as possible, leading to stories like the above. It's rough for the poor corner coffeehouse open mic night.

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  30. #43

    Default Re: What's in public domain these days?

    Quote Originally Posted by Chuck Leyda View Post
    Yeah it does get tricky with folk music.

    Most people don't get the fellers together and bust out an original arrangement of Mozart's Requiem. They use a standard arrangement and it's fair to pay for it. But when it's a 3 chord traditional folk song what is the arrangement??
    If it's traditional, it's fair play, as long as you're not copying anyone's arrangement (and even that is debatable.) Be sure to listen to all versions you can find, and don't copy anything that's specific to any given artist. (Legally you can toss in a "quote", but that can be contentious too. To wit, kookaburra and Men at Work.)

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  32. #44

    Default Re: What's in public domain these days?

    Quote Originally Posted by keith.rogers View Post
    First, IANAL, but, you are not distinguishing between "copyright" and "copyright registration," the latter is the only thing that really matters. And you can even register the copyright of a work without submitting a sound recording. How you obtained a registered copyright is irrelevant to whether your own performance puts a place at risk. What matters is if you have *retained* the copyright by not distributing via some channel that takes a slice of the rights (this is important to understand), and have not, yourself, registered with a PRO (ASCAP, et al.) and put the song in their database/catalog (either as the writer or publisher). If you are the sole owner of the (registered) copyright, you can grant yourself the right to perform it for free anywhere you choose.

    The business of "public domain," however does incur the pitfalls of registered copyrights of performances (SRs) that are so similar to yours that a claim can be made, and nobody has the lawyers like the publishing houses and PROs. I've had claims made against classical stuff because it was similar enough to a published arrangement someone had copyrighted, no matter it was originally written 300 years ago (plus or minus), and it was performed from reading the "urtext" (original published composition). I don't think you'll have that problem in your average pub, though.
    Correct except one thing. For most purposes, there isn't much distinction between "copyrighted" and "registered copyright." IANAL, but my father is a retired patent attorney and we've discussed the issues, plus I've studied the info at www.copyright.gov . The only distinctions are that you have to register to sue for infringement, and if the infringement was while the work was registered, you have certain legal advantages in a lawsuit (the copyright is assumed, and you can sue for "statutory damages" in addition to "actual damages." None of which matters here.

    But your point about registering with a PRO is spot on. I have heard stories about artists being dinged for playing their own material (odd as that may sound) but they were registered with a PRO. Even then I bet that's pretty rare, but I have no data to support that.

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  34. #45

    Default Re: What's in public domain these days?

    Quote Originally Posted by Charlie Bernstein View Post
    Our arrangements aren't based on anyone else's.

    But we won't be playing any copyrighted songs, anyway, so it doesn't matter. The venue won't have to fight anyone about anything.
    I think you're missing an important point: even if you're playing songs in the public domain, the arrangement DOES matter. But if your arrangements don't sound like copies of registered artists, you're OK. Also note that in copyright law, you're allowed to come up with the same thing independently -- but that can be hard to substantiate in court.

  35. #46

    Default Re: What's in public domain these days?

    Quote Originally Posted by pops1 View Post
    If you copyrighted your song with ASCAP, BMI, or SESAC, they are copyrighted and it makes no difference who plays them, including the songwriter. The venue would be under obligation to pay the fees.
    You mean, if you signed up with a PRO such as the above.

    If you write or record a tune, it's implicitly copyrighted (in the US and most countries.) If you've only ever simply played it, and never written it down or recorded it, it is not copyrighted (and anyone can copy you and get away with it.)

  36. #47

    Default Re: What's in public domain these days?

    Quote Originally Posted by Mandobart View Post
    And the licensing fees collected by the PRO's are typically awarded to member artists based on radio airplay. Does anyone think club owners that pay their fees are also judiciously keeping a log of every time a band plays Mustang Sally or Walls of Time? No, all those fees for public performances of Angel From Montgomery are going to Taylor Swift and Justin Bieber, not Fiona and the boys.
    Sad but true! Or at least it used to be so. Hopefully they can soon find good ways for revenues to go where they belong. If only there was a profit motive for Google to get involved! (Yes, that's at least half cynical irony.)

  37. #48

    Default Re: What's in public domain these days?

    Quote Originally Posted by Charlie Bernstein View Post
    Good point. Whenever I type up a new song, I put the title on the first line and on the second say "copyright Leon Fullerton" (my pen name).

    I've also sent a few to the copyright office, and you're right, that's what I sloppily think of as copyrighting.

    But when I write a new arrangement (usually a radical rearrangment), the second line says something like: "Bukka White (Leon Fullerton arrangement)." I wouldn't dream of copyrighting my arrangements. As far as I'm concerned, even if I alter a cover beyond recognition, it's still a cover, and the writer is still the writer.
    Just FYI, your arrangements are automatically copyrighted. But if you don't care, nobody else should either.

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  39. #49

    Default Re: What's in public domain these days?

    Quote Originally Posted by Jeff Mando View Post
    Let me say, has the world changed overnight, or something? I've played both cover songs and originals in theaters, outdoor venues, private parties, night clubs, and beer joints for over 40 years and have never heard this request.......ONLY ONCE, in Europe, did I have to submit a set list of songs and their composers that I would be performing -- obviously the venue was big enough to pay royalties to those concerned....nothing negative resulted from this, for the record.
    Not much has changed (in fact, too little has changed.) As I said above, it varies dramatically with location. Many of the venues you play at pay the fees so it doesn't matter. Others don't pay fees but the local agents don't care. If there's an issue, it's up to the venue to let you know. They're the ones on the hook.

    The local PRO agents have a lot of latitude to cut whatever deals they want.

    I would say I agree the writers of the songs deserve payment, but, in reality, nobody from the library of congress is sitting in the audience with a clipboard. The bar owners might fear a knock on the door or maybe just want to avoid extra paperwork, but in reality, the amount of the royalties would be pennies per song, and sure, if the bar has cover bands every night that might amount to $200-300 annually...
    It's the job of the PROs to do the policing. They get a cut of the revenues they secure for their clients. They get this revenue by charging the venues, usually per seat (and often, assuming full occupancy all the time.) As mentioned above, the funds raised by these fees get allocated to artists based on percentage of radio play, so most of it goes to whoever's popular and has nothing to do with what's actually played.

    The song list was probably for another reason, or else it was someplace where the PROs use a different system.

    I've heard of venues that require song lists just because they want to control what's played and not played.

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  41. #50
    Registered User Charlie Bernstein's Avatar
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    Default Re: What's in public domain these days?

    Quote Originally Posted by JeffLearman View Post
    I think you're missing an important point: even if you're playing songs in the public domain, the arrangement DOES matter. But if your arrangements don't sound like copies of registered artists, you're OK. Also note that in copyright law, you're allowed to come up with the same thing independently -- but that can be hard to substantiate in court.
    That's what I meant. They don't sound like anyone elses.

    But having thought about it, there are a few. For instance, my "One Meatball" and Josh White's are very similar — taking into account, of course, that I'm no Josh White. And my "I Can't Keep From Crying" is loosely but recognizably based on Ten Years After's.

    So you're right, it's a good thing to pay attention to. Thanks!
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