“Are you Matthew Landan?” asked a woman with a clipboard as I walked into Derby City Espresso last week.
I’m not Matthew Landan. I told the barista that someone was looking for Mr. Landan, and he told me the woman had just been inside asking about Landan. The woman represented the American Society of Composers, Authors and Musicians, or ASCAP, and had dropped off some paperwork for Landan, who owns DCE.
I snuck a peek at the paperwork while I drank my coffee. ASCAP is asking the shop to pay just under $500 for protection against copyright infringement lawsuits. If Landan paid the money, DCE would be registered with ASCAP and could then play copyrighted music through the stereo and have DJs and cover bands play at the shop without fear of being sued.
But the paperwork looked more like a bill that a registration form. It was dated September 2008 through September 2009 and the total fee was tallied based on concerts hosted at DCE in that time. If DCE followed its current concert schedule, then the fee comes to about $2 or $3 per show. Saying it’s a legal matter, Landan declined to comment on the story at this time.
I’ve heard of venues being sued over infringement, but I never thought about how ASCAP proves that clubs are in violation of the law. Have you ever seen an ASCAP collector or enforcer, or do you know about any similar cases? ASCAP has faced a lot of criticism for its strict stance on copyright (they’ve suggested that ringtones are public performances). Do you think they go too far, or are they protecting musicians’ intellectual property?
4 comments
July 8, 2009 at 1:15 pm
Matthew
I don’t think it should count as a performance venue when the store plays recorded music over it speaker system. Otherwise they wouldn’t be able to play a radio station either, would they?
July 8, 2009 at 6:31 pm
Cory
First addressing the comment: Sec. 110(5)(B) provides certain exceptions for small businesses to play the radio or television to their patrons (which would otherwise be a public performance). In Matt’s case, if DCE is less than 3,750 sqr feet, then he’s free and clear to play the radio, if it’s more than 3,750 then he can play the radio so long as he doesn’t use more than 6 loudspeakers with no more than 4 in any single room or adjoining outdoor space.
Unfortunately for Matt & DCE customers like myself, the radio is full of commercials and nobody wants to play that at a place like DCE. The really unfortunate thing is that neither satellite radio nor webstreaming is included in this exception, so XM and Pandora are both out.
What is really happening isn’t that the $500 fee is protection against infringement…what it does is to give the proprietor of the business a blanket license to publicly perform songs registered with ASCAP. The business is generally going to need to also pay the fee for BMI and SESAC, the other performing rights organizations. It doesn’t work to say that having X number of bands playing means it results in $Y per show…the fee only applies to when it’s the public performance of an ASCAP registered song. Thus, when You’re My Density plays their upcoming show, no ASCAP fee is needed unless they cover an ASCAP registered song.
For those who don’t understand, it’s important to know what a performing rights organization is and does. Normally with property, he who possesses something owns it. With intellectual property, and copyrights in particular, rights get divided up more easily. One of those rights is the exclusive right of the copyright holder to publicly perform the work. Artists affiliate with one of these three performing rights organizations namely ASCAP, BMI & SESAC. For administrative ease, performing rights organizations step in and give businesses a way to pay for their public performances to only one of three entities. By making the process of paying for the public performances incredibly simple, businesses are more likely to pay. Additionally, artists would not themselves be able to administer or enforce the payment for their public performances. To simplify things further, these entities give the option to pay for a blanket license to use any and all of their works. This means that whether you play 5 songs or 5,000,000 songs, you pay the same blanket rate. As a result, they’re necessary to protect the rights of the artists if Congress maintains the (in my opinion) absurd stance that broadcasting music over the radio is somehow less damaging that webcasting music or playing it via satellite radio.
To that end, playing CDs or your iTunes playlist IS different than streaming audio or satellite radio because of who is choosing the music. Just as you cannot choose what songs the radio plays, sites like Pandora have tried avoid infringement claims by eliminating the ability to go back or to choose a particular song. However, until Congress realizes that some new media isn’t functionally that different from some old media, and just as playing records wasn’t allowed then (or now), mp3’s and cds shouldn’t be allowed, but streaming audio and satellite radio should fall within the exception carved out for small businesses (particularly considering THOSE entities have to pay a LOT of money for the public performance that they give by streaming (for streaming audio, it’s a minimum of $25K + the greater of 25% of all revenue or $0.08 per song played)
Ultimately, ASCAP has to, from time to time, threaten legal action, and if venues continue to refuse to pay up, then taking them to court. If for no other reason then as to make an example of those places they catch. BMI files a suit against Pianos in NY this week which can turn a $500 blanket fee into some big numbers very quickly. The orgs push the limits, but ultimately they’re backed by Congress and until Congress catches up with the times…they’re going to keep tracking down these venues and enforcing their rights.
July 8, 2009 at 6:59 pm
gabebullard
Thanks for the insights.
I could be wrong, but I think the paperwork was itemized by the way protected music could have been played (record, modified/remix or live cover). The DCE bill came out to an odd number, maybe $483. Do the blanket fees vary, or would an invoice like that be per use?
Here is ASCAP’s fee calculator, which seems to support varying license fees based on revenue and visits, etc. I could be way off. Cory, any help?
https://www.ascap.com/weblicense/license.html
July 8, 2009 at 7:00 pm
Cory
Note: It’s important to know that I’m not condemning anyone here, neither the performing rights orgs nor Matt. Matt’s my homeboy….
The way I see it, most businesses should get a warning (which my understanding is that they do) because most people aren’t going to know the finer details of copyright law and know that they have to pay just because they play their iTunes from their computer but wouldn’t have to if they played the radio. It’s part of the forgiveness of the learner’s curve.