WhaTF: BMI and ASCAP Sue Cafe Wha?

“What is at stake is the United States of America’s live music scene!”

or

Music Gestapos that are killing live music venues around the U.S.A.

Venues are shutting live music out of their format because they just can’t afford it!

A.S.C.A.P. & BMI (The Two Largest Music Publishing Monopolies) are forcing live music venue owners to buy into their program or face stiff fines & penalties. Coffee shops, bars and festivals are not having live music at all due to the insane aggressive and abusive policies put forth by these companies. Our nation is losing site of how great music is nourished in small venues like these. What is at stake is the United States of America’s live music scene!

Here is A.S.C.A.P. and BMI’s policy in short:

A musician plays a cover tune at a venue. Venue owners must pay hundreds of dollars in licensing fees each year for that musician to have the freedom to perform that cover song. Unfortunately, the small business owner has to decide whether to pay the electric bill or keep the live music…you guessed it…

NO MORE LIVE MUSIC!

Here is a key problem with these publishing companies’ formula:

The venue owner, who is not a musician and has no control over what a performer plays, should not be the one responsible for performance licensing fees. The musicians who cover various pop artists’ tunes should be responsible for paying this licensing fee and not the venue owner (period). It’s the equivalent of throwing the wrong parent in jail, because someone else’s child stole candy from the corner store. Why not have a minimal membership fee that the musicians and small venues can pay instead. The Publishing Companies would probably make more money that way.

Who does this hurt? Everyone!

Struggling musicians no longer have a place to play music to cover let say a Metallica tune, which by the way means the age old tradition of passing melodies on to new ears via live performance would be essentially dead. No places to perform means no one is asking who wrote that tune, which means no one is going to buy the album or request the song on the radio. Which means Metallica will only exist on a few radio stations and not in the minds of new listeners who could have supported & enjoyed a live performance by some local musician at a venue, then potentially paid for and downloaded that Metallica song later because it sounded good to their ears. (That’s how the music industry sold songs for years – its free promotion!)

How does a venue owner profit from a tune being played over the radio or being performed by a cover band?

Here is where these companies have pulled the wool over lawmakers’ eyes.

Their spin is that audiences at venues are enjoying the music of BMI or A.S.C.A.P. artists being performed over the radio or by a secondary party; therefore the venue makes money from this music because it attracts people into their store. While radio and/or cover bands may create a nice sonic environment, they don’t generate income. It is the musicians’ perspiration and grass roots promotions that bring people into a venue and not a famous artist’s cover song. Finally, the radio has not and will never pay bills for venue owners! This is a scam, plain and simple, that needs to be exposed and the system needs changing urgently!

This is a scam and their needs to be change!!!

“What is at stake is the United States of America’s live music scene!”

or

Music Gestapos that are killing live music venues around the U.S.A.

Venues are shutting live music out of their format because they just can’t afford it!

A.S.C.A.P. & BMI (The Two Largest Music Publishing Monopolies) are forcing live music venue owners to buy into their program or face stiff fines & penalties. Coffee shops, bars and festivals are not having live music at all due to the insane aggressive and abusive policies put forth by these companies. Our nation is losing site of how great music is nourished in small venues like these. What is at stake is the United States of America’s live music scene!

Here is A.S.C.A.P. and BMI’s policy in short:

A musician plays a cover tune at a venue. Venue owners must pay hundreds of dollars in licensing fees each year for that musician to have the freedom to perform that cover song. Unfortunately, the small business owner has to decide whether to pay the electric bill or keep the live music…you guessed it…

NO MORE LIVE MUSIC!

Here is a key problem with these publishing companies’ formula:

The venue owner, who is not a musician and has no control over what a performer plays, should not be the one responsible for performance licensing fees. The musicians who cover various pop artists’ tunes should be responsible for paying this licensing fee and not the venue owner (period). It’s the equivalent of throwing the wrong parent in jail, because someone else’s child stole candy from the corner store. Why not have a minimal membership fee that the musicians and small venues can pay instead. The Publishing Companies would probably make more money that way.

Who does this hurt? Everyone!

Struggling musicians no longer have a place to play music to cover let say a Metallica tune, which by the way means the age old tradition of passing melodies on to new ears via live performance would be essentially dead. No places to perform means no one is asking who wrote that tune, which means no one is going to buy the album or request the song on the radio. Which means Metallica will only exist on a few radio stations and not in the minds of new listeners who could have supported & enjoyed a live performance by some local musician at a venue, then potentially paid for and downloaded that Metallica song later because it sounded good to their ears. (That’s how the music industry sold songs for years – its free promotion!)

How does a venue owner profit from a tune being played over the radio or being performed by a cover band?

Here is where these companies have pulled the wool over lawmakers’ eyes.

Their spin is that audiences at venues are enjoying the music of BMI or A.S.C.A.P. artists being performed over the radio or by a secondary party; therefore the venue makes money from this music because it attracts people into their store. While radio and/or cover bands may create a nice sonic environment, they don’t generate income. It is the musicians’ perspiration and grass roots promotions that bring people into a venue and not a famous artist’s cover song. Finally, the radio has not and will never pay bills for venue owners! This is a scam, plain and simple, that needs to be exposed and the system needs changing urgently!

Does anyone know what the outcome was when ASCAP/BMI sued Black Betty (Williamsburg) and The Hiro Ballroom a couple of years ago? I never heard what became of that...

Jibbly wrote: "Basically, they keep track of where, when, and how often a song is used, either in it's entirety, as snippets, or covered. They then collect fees from the person/place that used the work and partition it out to whoever owns the rights to the work, usually the writers and performers"

WRONG. That is exactly what BMI/ASCAP WANT people to think so they can justify harrassing small venues for their licensing fees. The truth is that the "performers rights" organizations collect the money from these small venues and then distribute it amongst the TOP 200 ticket selling artists of that year. In fact, unless you're playing Kanye West, Madonna or some shit like that, the artists whose songs you are playing don't see a single CENT from these venue licensing fees. It's a government endorsed scam and it's total bullshit. ASCAP/BMI are full of staff members who are no different than collection agents whose sole job responsibility is to harrass small business owners until they feel that they have no other option but pay these con artists. They will constantly call and claim that you are "stealing" music. Even if you pay artists very well to perform at the venue.

This is not about downloading. They are talking about live performances. The Cafe Wha house band plays 5 or 6 nights weekly. They dont play any original songs whatsoever. Every penny that is made comes from a playlist of well known hit songs that are performed while tourists get drunk.

Its unethical to withhold money from the very songwriters/performers that give Cafe Wha, The Groove and The Village Underground etc. (all venues that basically have glorified wedding bands performing nightly) their sole revenue.

P.S. Thanks Gothamist servers. You've fucked up yet again.

None of this would be on the ASCAP/BMI radar if it were a dive in Manhattan, Kansas. But because it is in NYC, it is a much more visible target. So, this all amounts to corporate chest-thumping at its most profane.

Traffic laws are also less likely to be enforced on desolate stretches of country road, but the laws are the same. The fact that it's more economically feasible to enforce copyright in some areas than in others doesn't detract from the validity of the enforcement.

None of this would be on the ASCAP/BMI radar if it were a dive in Manhattan, Kansas. It's corporate chest-thumping at its most profane.

I think the question is whether it is commercially, economically viable. In theory an outfit like Cafe Wha is promoting the product. In flush times maybe you don't need that promotion, but times have changed according to what I hear.

In no way is a cover band promoting the original product. Do you really intend to argue that people will be enticed to be enticed to buy the original version of a song (recorded or sheet music) because they've heard a cover band perform it? Seriously?

No, they're not promoting it. They're profiting from it.

Sure, they're promoting it. The sales in popular music are mostly about fashion, not artistic quality. The more something gets played, the more fashionable it is.

I guess what I'd disagree with there is that licensing public performance is logistically unenforceable. While a few places may slip through the cracks, the vast majority of those where it's applicable do pay the license fees. Those that avoid it don't get away with it forever, at least in big cities where the enforcement teams work.

Basically this is a system that's been in place for decades. The arguments against the ability to enforce copyright on newer technologies like file sharing don't apply.

Now without a doubt there are many problems with the approaches taken by both ASCAP and BMI, primarily with distribution of royalties on less popular works, so I don't intend this to be a general defense of either organization. But collection and payment of royalties does make sense in principle, and paying royalties for public performance -- while not being done perfectly -- also is a reasonable idea.

Meant that as a reply to widefive, comment 20.

I don't think the propertization of culture has much future. It is an error to suppose that what publishers and enforcement agents are selling and controlling is art. They're selling fashion, and 90% of the time the art isn't very good. In the recent industrial era, it was possible for big corporations to get almost total control of the mechanical reproduction of music (both printed and recorded) and other art and, riding waves of fashion, to raise both the popularity and the scarcity of the product, thus leading to rewarding financial opportunities. But that control had to do with the industrial plant necessary to make, record and distribute the music. Computers and the Internet have changed all that radically, and the old model is just about finished. Consequently we see the enforcers attacking a performance space like Cafe Wha, which amounts to cutting their own throats.

This is aside from serious legal, philosophical and moral questions about intellectual property, especially in its inflated contemporary form, which there isn't room to discuss here.

I've been here once, and I can confidently say that every single song sang by the bands are a cover. Personally, I think these publishers have a case. It's just a gutted-landmark turned tourist trap for overweight mid westerners anyway.

Yes, please. Put me and the thousands of other people in the industry who don't make several million a year out of work.

You know how everyone hates all cops because guys like the douche that tackled the kid off his bike? You're in an industry like that. As long as your industry keeps doing stuff like this, no one is going to feel guilty stealing from them.

If they accepted this wasn't going away from the beginning and tried to work within it, we'd be in a very different place today.

Jaycjay,

I am not suggesting that they ignore the new methods. I am suggesting that they ignore all methods which are logistically unenforceable (such as public performance and PTP) in favor of more concrete things such as those I mentioned in my previous post. The tactic of following through on high profile cases to attempt to intimidate smaller entities doesn't actually work, so why should they waste the money?

If someone covers your track live then let it go. They're promoting you. If they record it then they should have to get permission and a contract, the terms of which can be stipulated by the copyright owner.

These are just my views, I respect that you disagree and enjoy the debate. I'd love to hear more of what you think.

The usual argument is that they should accept things like PTP sharing because they can still make money on a list of things including licensing for public performances. So instead of trying to monetize new methods of distributions, they should stick to the old ones.

Now you're arguing that they should drop one of the oldest methods, along with ignoring the new ones?

These folks are trying so hard to preserve a business model that is so antiquated it is ridiculous. There are so many new ways for musicians to make money off their music. They need to adapt and accept things like this as free promotion.

They've still got iTunes downloads, ticket sales, commercial spots, merchandise, collaborations, endorsements, licensing deals for film soundtracks...

Why waste your money suing for petty shit like this? It only makes you into a villian. Did Metallica do themselves any favors by going up against PTP sharing?

Cafe Wha sucks. It's current incarnation has nothing to do with the original. When Dylan and Cosby played there it was where the Comedy Cellar is now. They've been cashing in on the name for years now and the original owner's family gets nothing. They stole the name, they steal tourists' money (not even NYU kids bother to go there), and now they're stealing music.

Also, Carlson's righteous indignation reminds me of all the illegal downloaders on Digg and BoingBoing that think having a noble cause justifies breaking the law. It doesn't, and as a music fan, I would expect Jen to support artists' rights.

Not that I'm defending illegal downloading, but what about the fact that record companies have been screwing the consumer over with ridiculous pricing for many years? $17 for a CD that costs, maybe, $2 to make? And just to find out that only 2 of the 12 songs are even listenable? The record companies are the only ones to blame for their own downfall. They bitched about the cassette tape, but then went on to make more money than anyone could have imagined... until the MP3. They, just like all of the failing businesses of the past few months/years, did not plan well and it cost them BIG time.

Plus, when people watch MTV and see the extravagance of these artists, they don't feel bad about not spending money on this or that 16 year old that owns 3 mansions.

What's ironic is that this is a "WTF" because this place helped start some big careers, but those same musicians' rights have been protected by agencies BMI and ASCAP for their entire careers. Just because your club has history doesn't mean you're exempt from paying musicians their fair share.

With people buying fewer and fewer records, expect to see this more. If you're a bar owner, pull your head out of your ass and pay the publishing fees before you get hit with a lawsuit for way more.

Meh. It seems to be pretty standard for any joint that plays music to cough up a flat fee to ASCAP & BMI. You see the ASCAP stickers on the door.

Everyone should just download music illegaly. All these greedy record companies want is more and more money. Fuck them.

FYI: BMI and ASCAP are not record labels, they're music publishers. Basically, they keep track of where, when, and how often a song is used, either in it's entirety, as snippets, or covered. They then collect fees from the person/place that used the work and partition it out to whoever owns the rights to the work, usually the writers and performers. Labels (especially the major ones) take a few points, as well as producers, recording engineers, and managers, etc.

What's happening to Cafe Wha? is equivalent to you not reporting taxes on stuff purchased tax free through an out-of-state online retailer and the IRS coming after you for it. I personally think this is a high profile publicity stunt by the publishers to scare other venues into reporting their play lists, because seriously the end payoff from this lawsuit will probably barely cover legal fees.

"because seriously the end payoff from this lawsuit will probably barely cover legal fees"

A staff attorney, already being paid, sends out some boilerplate documents. The only expense is a filing fee. Odds are the place settles and pays up, if not in the case it goes to trial they can't win and will pay the legal fees.

My experience with this is that a BMI or ASCAP rep will come to the bar and personally deliver papers threatening legal action before any suit is filed. The licensing fee will be specified at that time, but is open to negotiation. It's probably possible that you're right and that step was skipped, but more likely Cafe Wha? had plenty of time to deal with it before it got to this point. Maybe they're the ones looking for publicity.

I don't necessarily mean that BMI/ASCAP trying to garner publicity from a lawsuit is a bad thing. I mostly side with them as they're just doing what the organization is meant to do, which is to catalog and collect fees on performances. That's their business model and contributes to musicians directly.

I like your tax analogy, but ASCAP, BMI, and SESAC are performing rights organizations, not music publishers.

Only two groups of people, technically, collect royalties: the copyright holder (also called the "publisher," although it has nothing to do with literal on-paper publishing) and the songwriter/composer (which may or may not be the performer). With ASCAP, 50% of the royalty is the "publisher's share," and 50% is the "writer's share." There can be more than one pub or writer for a piece of music. Royalties may (or may not) be split up and redistributed by the (usually) publisher or (rarely) writer to other people who were involved in the making of the recording.

And now, back to our program.

Totally correct, I mixed the two up. *E*MI is a publisher, *B*MI is a performing rights organization. I had the correct definition in my head, but called it by the wrong name. Either way the analogy still works!

Yes, please. Put me and the thousands of other people in the industry who don't make several million a year out of work.

You're not hurting the bigwigs--you're hurting the engineers, the session players, the guys who design the artwork for the package, etc. , etc. Geez, there's enough financial strife and unemployment out there now. Don't make it worse.

ASCAP and BMI aren't record labels. But you're righteous in your downloading none the less.

ascap and bmi aren't record companies.

So a band can't get a gig and play a cover song?

WTF

The way it used to work, and I'm not sure if it still does - is that clubs are responsible for paying royalties for the covers that their hired acts play. Now, I know from being in a touring band (who played tons of covers) and now working in the industry that this has never been really regulated and no club I've ever been in has discussed how they pay publishing companies - I assume only major theaters and arenas have someone who actually pays attention to these things. Cafe Wha??? that place holds like 10 people??? wtf

Songwriters gotta get paid!

ASCAP pulls this shit to strike fear into the joints in Joplin and Topeka whose violations go unnoticed. Like the rest of the record industry, they now support more lawyers than artists.

You know, it'll cost a lot less to NOT sue them and let them play the music. Lawsuits are expensive and, well, this is just stupid.