What about bands that are independent and possibly don't pay asap? Hypothetically if we wanted to cover a song by a band like that, could we? Would we have to confirm from the band themselves that it's alright?

Don't get me wrong I appreciate being able to play our own songs and the stance you have on this, but I know we could do some pretty good covers of some bands most people haven't heard of, if we were given the opportunity.

 
 

...I mean ASCAP
 
 

This quickly devolves into laws that not even lawyers understand, and that ASCAP and BMI have millions of dollars invested into stacking the deck against us. 1 mistake can result in a $30,000 lawsuit against us. So its not really worth our while to figure out various ways that a group can enjoy 3 minutes of someone elses writing. The penalty for getting the details wrong is just too catastrophic. ..as silly and stupid as that may be.


So, as you say, for a hypotehetical, we could work on this .. maybe.. on a song by song basis. I know for certain it would involve written permission from the performance rights holder (likely the author), and verification that the groups arent associated with these organizations.


For bands that we dont personally know, the answer is just a simple 'no'.

 
 

.... no one gets paid... what am I talking about!?!? None of this counts for anything if there is no money involved.
 
 

WHAT?

It is not at all necessary to pay BMI, ASCAP or any other publishing company or rights organization to play, or have played in your establishment covers. This is why its so confusing; people start spouting off info that just propagates misconceptions. You need only be concerned if you are claiming the music is your own, making a mechanical property (if this term doesn't make sense then that's problem one of your the misunderstanding, and I don't have the page length to explain it) or if you are making a recording of your show (refer to mechanical property). Almost everything you ever need to know about the music business is in this book, "Everything You Need to know about the Music Business". Buy it.

This comes from about seven years in the entertainment Media Industry, advise from our attorney and knowledge from people who actually receive money because of agencies like ASCAP or BMI.

Also, as a band we don't really play covers, but we are looking to try and do something fun and original with a good 80's pop song. So if you do it, make yours... or not... regardless of peoples opinions, no one probably cares either way.

I challenge anyone to talk to an actual entertainment attorney... they'll assure you that no one is going to sue some fucking coffee shop over indie bands for playing covers....that's ridicules and has legal grounds.

And if someone is claiming to be only interested in originals, check and see if they are into or support the DJ scene... or ever have DJ acts in their establishment... If yes politely tell them to kiss your ass for being a hypocrite. If beat-matching and mixing someone's music is original, then I'm confused?
 
 

whoa easy there. I didnt know any better I'd swear you didnt like us. :p

hmm.. I had hoped to keep the conversation simple.. but here we go:

yes, it is bullshit. But not ours. They do unfortunately sue every 'fucking coffee shop' they can find over indie bands playing covers. A little searching of the news on ASCAP brings up a bucket full of examples, heres one.

http://www.accessmylibrary.com/coms2/summary_0286-18786839_ITM
and another a few years later
http://www.wired.com/listening_post/2007/07/ascap-cracks-do/

It makes sense that they would sue coffeeshops and other small venues as well. Through this they can make an example that gets put out over the wires with little risk to themselves. Very few small venues will have the resources to mount even a modest defense.

As far as talking to an entertainment attorney. Id love to.. got a free one? :p

To be clear there is a lot of confusion about appropriately crediting the original artist etc. That has nothing to do with what I'm talking about. There is a difference between copyright and performance rights which we're dealing with here.

A part of what you say is correct, and this is where the information in the book comes in. The artist has NOTHING to worry about as far as doing covers. They can play whatever they want, wherever they want and not get sued. However since we have not paid for the rights to the organizations that control the performance rights WE will get sued for the public performance.

This is set out here:
17 usc. 110 FAIRNESS IN MUSIC LICENSING ACT OF 1998 also called the
Sonny Bono Copyright Term Extension Act
http://www.govtrack.us/congress/bill.xpd?bill=s105-505
http://www.law.cornell.edu/uscode/17/110.html
http://en.wikisource.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act

A direct reading of the law would SEEM to indicate that we would be fine by selling CDs of the artist at the event. As this is spelled out under sub section 7. Unfortunately businesses have already tried this defense and lost, and been fined for the performance.

Under this law we would even have to pay for plying the radio at our coffeeshop except were specifically excluded under the square footage provision. ..this part HAS been upheld in court.

So.. Bad Jackie.. I did read and reread your post because I know you specifically have been in the industry for a while on the performance and production side of things. But given these specific examples and talking with other venues you are in this instance, just wrong.

The difference between us and almost every venue you as musicians would have experience with is the fact that we have not and will not pay those organizations their fees. Almost every other business will simply fold under the pressure and pay. We couldnt afford to if we wanted to.

..and if you're somehow right and could somehow put legal force behind it. You can wander the streets of every city in the US (at the very least Wa, Il, Or, and AK that I have direct experience with.) and save every business from paying these fees which amount to $1000s a year for most venues. You would be quite rich if you just got paid commission.

Its not right, its not a system that promotes innovation, its not fair, and its not how I would do it. But it is.

No covers.

 
 

So all I saw were instances pertaining to reproduced music (cd's and recordings) and then actual music venues (where income is directly related to the performance) who pay these fees, or not and get busted. Could not find one where the establishment was not either paying the musician or the musician was receiving a portion or all the cover charge, but then agian that info is sometimes left out and is important. The other ones were referring to music being played over speakers from a recording. And then yes, a million years later, music venues who's profits are obviously related to the performance got screwed.

Someone explained it like this. You own a sandwich shop. You have the right to refuse or give service to anyone. Guy comes in with guitar and plays some songs. You don't kick him out. Everything is cool.
He's not an employee, he's not making money in your store. He can play whatever he wants.

I'm pretty sure you're in the clear if you don't pay the musician or charge a cover. I'm sticking to that. And yes we like you.

I'm tired of this. I'm glad I don't own a coffee shop.
No covers is cooler anyway in my opinion.


 
 

Unfortunately the legal tactic that ASCAP and others take is that the musical performance is being used to enhance your business. That the act of having, or allowing in this case, music creates an environment that causes more money to be made. Hence the fees.

Anecdotal example:
http://www.zeropaid.com/news/8892/coffee_shops_getting_copyright_shakedown/

http://acapella.harmony-central.com/archive/index.php/t-1680388.html
(see the story by Torres from Florida today, it involves music with no covers.)

I suppose in the end its good to have the conversation. People usually end up either paying the fees, or ignoring it and then being forced out of business after few years. Very few actually try and go the independent route.

The traditional route a few years back really used to be if no money changed hands then no harm no foul. But in the last 10 years or so it looks as though they have focused on cracking down on even that practice. Im not familiar with what the law actually was before 1998, but in law or in practice it must have been better then this legalized extortion. The congress literally has put the music mafia in business.

So it is somewhat dangerous for us to have live music. But it is also the most fun really. So we keep it up anyway. Its all in the hope that the bands playing here will respect our wishes enough to go along with it. ..and if we can find a way out of it we will, but to date nothing convincing AND specific has come up.