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

[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.

[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.

[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

[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).

[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.

[Bill Snyder]

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

[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

[fredfrank]

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

[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

[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.

[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.

[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?

[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.

[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.

#

[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.

[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.

[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."

[Michael H Geimer]

Chinese watch ready at midnight

What key is that in?

[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.

[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.

[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!

[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.

[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 ..

[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.