ASCAP – The Musical Mafia
By Melissa Cox, independent songwriter
September 15, 2009
I wrote this essay to educate and enlighten my fellow songwriters about the dangers of joining a Performance Rights Organization. Below is my personal account of how ASCAP used illicit means to acquire money from small venues in my hometown, at the expense of its songwriter members and under the seemingly false moniker of an advocate of musicians’ rights. The words written below are my own personal opinion and point of view. I welcome corrections, rebuttals, similar stories, etc. I also welcome any ASCAP representative to contact me directly via email at melissacoxmusic@yahoo.com – I would love an explanation, and some answers.
A few years ago, when I was an impressionable music management minor and budding songwriter at the University of Delaware, I was told over and over again to become a member of a performance rights organization (or PRO). The “big three” PROs are ASCAP (American Society of Composers and Publishers), BMI (Broadcast Music, Inc.), and SESAC (Society of European Stage Authors and Composers). The purpose of these organizations is to collect money from venues, radio and television stations, and other entities, and disseminate those funds in the form of royalties to songwriters, publishers, and other artists whose works are played at/on those entities.
Sounds good, right?
Upon graduating and becoming a part-time professional musician, I did what I thought was best for me to do as a songwriter by becoming a member of ASCAP. After all, it was free to join, and I was eager to cash in on any revenue streams, which include royalty payments.
My troubles with ASCAP were almost immediate. First, I encountered extremely poor, almost non-existent, customer service. Whenever I called and left a message, it was never returned. Whenever I did get someone on the phone, they were rude, short, and rarely answered my questions.
Next came the royalty statements reading “zero,” meaning zero plays and zero dollars. This baffled me, because I knew that I was getting airplay on several radio stations, both traditional and web-based, and on television stations. And I knew that some of those stations were reporting their playlists. And I knew those stations paid dues to at least one, or all, of the PRO organizations, because they have to by law. Despite all of this, I never saw a dime in deserved royalties from ASCAP.
In 2009, I left my day job to become a full-time musician. It was at this time the dark side of ASCAP and its policies were revealed to me…
I was invited to play a laid-back coffeehouse show in my hometown for donation money. I played all original material (or, in other words, songs that I wrote and to which I held all rights, both recording and performance). Weeks after the show, I was contacted very unprofessionally through MySpace by the venue’s manager, who berated me for performing “copyrighted works” and putting her employer in danger of being fined $30,000 per performed song that was registered with ASCAP. (Yes, you read that correctly: $30,000 per song). Apparently, this little venue had dodged paying dues to ASCAP and the other PRO organizations by hiring 100% original and traditional musicians (traditional meaning that the songs are in the “public domain” and no longer under copyright from any one individual…these would include very old songs such as Irish/Scottish tunes, Native American songs, etc.)
At first I laughed, thinking it was some sort of misunderstanding: there was no way ASCAP could fine a venue if all the songs I played were my own. Had I busted out Sarah McLachlan’s “Building a Mystery,” or any other song that wasn't mine, I could understand their feeling of entitlement, but every song I played that night at the coffeehouse was my own, and I held the rights to play them, not ASCAP or anyone else.
I tried to explain this to the manager is a calm way, but she shot back at me more unprofessional gibberish. I decided to contact the woman who facilitated the coffeehouse gig and ask her about it. She said that ASCAP indeed threatened to fine the venue $30,000 per song. “But I played all of my own songs that night,” I protested. She told me it didn’t matter, because I was an ASCAP member and my songs were registered in the ASCAP catalog. Because the coffeehouse at which I performed wasn’t paying ASCAP, they were technically in violation.
It was at this point I was totally thrown for a loop. How in the world could ASCAP, or BMI, or SESAC, or any other organization or individual, tell me where I could play my songs to which I held all recording and performance rights? Yes, I was currently an ASCAP member, but why on earth did they think they had the right to charge a venue for songs to which I hold the copyright?
The booker of the coffeehouse gig sent me this essay written by a singer/songwriter named Richard Phillips, who experienced a situation very similar to my own, except his experience was with BMI, and not ASCAP. His essay is very long - if you do not read all of it, at least read the last two paragraphs, which include this ruling by Marilyn Kretsinger, Assistant General Counsel of Congressman John McHugh (R, NY, 23rd District):
" ‘With respect to the musical compositions that Mr. Phillips has authored, no performance license is necessary since Mr. Phillips is the copyright owner of those songs.’ With respect to traditional folk songs in the public domain, if I am ‘not performing a copyrighted arrangement of a public domain folk song, then a BMI license is not required.’”
Despite this ruling, and the fact that this should all be complete common sense anyway, PROs continue to use scare tactics and complete lies in order to extort huge amounts of money from venues that employ original musicians.
A few months later, still an ASCAP member (though a very disillusioned one), I was gearing up to perform at another local venue – a little non-profit grocery store that employs both original and cover artists on weekends. While negotiating my performance pay with the booker of the grocery store, she replied “We can’t pay you as much as we want to, because ASCAP is making us pay $50 per performance plus a huge annual fee.”
I couldn’t believe my ears – ASCAP had cornered this little non-profit and threatened them with huge fines unless they paid up. I tried talking with the grocery store booker, saying that she could fight this Goliath if she stuck to her guns and employed only original musicians who were not members of any PRO, and backed it up with documentation and a copy of each musician’s playlist. In the end, they decided to pay ASCAP, in part because they were scared, and in part because they still wanted to employ a few cover artists to please their customers.
A different venue, however, did fight the Goliath by employing only original artists not affiliated with a PRO. My musician buddy, who has an extensive repertoire of original songs, has a regular gig at a restaurant/club on Maryland's eastern shore. He told me that the owner of the club had been paid a visit in the beginning of 2009 by an ASCAP rep, demanding they pay dues, or else they would be slapped with exorbitant fines. The owner apparently told the ASCAP rep to kiss his you-know-what, and that he would fight them by hiring totally original and unaffiliated musicians, including my friend.
Two things have become very clear to me: 1) there was an ASCAP “spy” (aka “representative”) tracking down little venues in my hometown and scaring them into paying them, and 2) ASCAP had no intention of paying me any of the fees they incurred from these venues, thus they did not have my best interest as a songwriter at heart.
It was then I decided to terminate my ASCAP membership. The termination is still pending, because according to their policies, all songwriters wishing to cancel their membership must endure a “waiting period” of 6 months. My termination date is not until April 2010. My publisher membership is even further off, in late 2010. It is obvious that ASCAP does not let their prisoners go willingly or without a fight.
I implore my fellow songwriters to REJECT all PRO organizations. Do NOT sign up with them as members, unless you are absolutely willing to machete through red tape and deal with shady situations.
If you hear of any shady PRO activity in your town, of representatives threatening venues with huge fines, take action: call the PRO and demand an explanation. Call your local congressman or congresswoman and complain. Call the Better Business Bureau. Educate venues about their options, which includes hiring totally original musicians who are NOT affiliated with any PRO. Tell your music business professors that this idea that all songwriters must join a PRO is outdated and potentially harmful, and ask them to pose the alternative idea to their students. Educate your fellow songwriters.
If you are not signed up with a PRO, but you perform covers, check with the venue first and make sure that they are paying the PRO fees, because that is the only way you can legally get away with playing covers there without having to pay royalties out of your own pocket to the artist whose material you are covering (and profiting from). Venues who hire artists who play covers should definitely pay their dues to PRO organizations... it's only fair to the famous artists whose songs are being covered for your venue's gain.
PROs have their benefits I'm sure, and I know they have done good things for musicians, but they need to do alot to clean up their image in terms of these shady scare tactics in order to win my and other musicians' trust back. Hopefully, the United States Congress will one day take up this issue, resolve it, and begin regulating these huge corporations that use their member musicians as pawns to reap huge profits. I only pray I will live to see that day.