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A wrinkle with playing covers that I hadn't thought of

Discussion in 'Band Management [BG]' started by socialleper, Mar 27, 2014.

  1. socialleper

    socialleper Bringer of doom and top shelf beer Supporting Member

    May 31, 2009
    Canyon Country, CA
    I read this story today on the Daily Beast:

    I wasn't aware that the live performance of another band's material was copyright infringement as long as you don't take credit for the piece and/or tell the audience who wrote it.
    If any live performance of another band's material IS a violation of copyright and publishing laws, then how is it that every single club on the planet and 50% of the people here on TB haven't been sued.:eek:
    Does anyone have any practical first hand experience or legal light they can shine on this?
  2. KB4178


    Oct 7, 2012
    Boone, NC
    Because venues pay ASCAP, BMI, SESAC licences for performance royalties. This article at How Stuff Works gives a good explanation of how music licensing works.

    ASCAP are notorious a**holes when in comes to collecting license fees. Back in the 50s and 60s a lot of venues refused to work with them, and you'd see a lot of "You can't perform ASCAP songs here" signs backstage.
  3. fdeck

    fdeck Supporting Member Commercial User

    Mar 20, 2004
    Madison WI
    HPF Technology LLC
    The club pays for a license.
  4. Raf Seibert

    Raf Seibert

    Dec 16, 2013
    If you publicly perform music written by someone else, which is not in public domain, money is owed to the owner of the music. Usually, that money is collected in the form of licensing fees paid to BMI, ASCAP or SESAC. Usually, the licensing organizations collect these fees from the venue, rather than from the performers. Depending on the nature of the business, it's size and so forth, the organization collects a flat rate for the year.

  5. teleharmonium


    Dec 2, 2003
    It's not copyright infringement. It is a payable usage of published intellectual property.
  6. repoman


    Aug 11, 2011
    Kinderhook NY
    So if you are playing cover songs at, say, an American Legion Hall or a church rec. hall or even your buddies backyard BBQ, somebody should be paying a fee?
  7. In the strictest legal terms, probably yes.
  8. Stick_Player

    Stick_Player Banned

    Nov 13, 2009
    Somewhere on the Alaska Panhandle (Juneau)
    Endorser: Plants vs. Zombies Pea Shooters
    Yep. Those are the "rules".

    Hopefully, there aren't any ASCAP-cops disguised as a "buddy".

    Remember, "you" are that "somebody" that owes the fees.
  9. BurningSkies

    BurningSkies CRAZY BALDHEAD

    Feb 20, 2005
    Seweracuse, NY
    If there's a sound system, stereo, or stage, there's a good chance that ASCAP or BMI have cased the joint.

    My experience is that reps come through town and visit every 'new' place they find, the drop by, see if you're playing music in your restaurant, bar or coffeehouse, if it looks like you're posting live music shows or have stage space. Then they give you the shake down for the licensing fee. I've never known a band to pay that fee, just the bar/club/coffeehouse/resaurant/function hall.
  10. yodedude2

    yodedude2 Supporting Member

    definitely not copyright infringement. it must be fixed into a format for that. it could be argued that a recording of such a performance would be copyright infringement, but not the performance itself.

    i think.
  11. yodedude2

    yodedude2 Supporting Member

    not sure about the backyard bbq. context is in play here.
  12. yodedude2

    yodedude2 Supporting Member

    we got a visit one time for playing a local radio station for telephone callers placed on hold.
  13. repoman


    Aug 11, 2011
    Kinderhook NY
    waaat? These guys are worst then the IRS...:)
  14. socialleper

    socialleper Bringer of doom and top shelf beer Supporting Member

    May 31, 2009
    Canyon Country, CA
    So if this is an extra cost of doing business by having local acts perform covers, do clubs still make more net profits after paying the licensing fees for the covers over just having original acts play?
    How are these fees assessed? Is it by the song, or by the act? Do certain songs cost more than others? Are there set fees that the clubs pay for "X" number of covers?
    It all seems very ad-hoc.
  15. BurningSkies

    BurningSkies CRAZY BALDHEAD

    Feb 20, 2005
    Seweracuse, NY
    They don't usually pay individual song fees, they pay for a blanket license that covers a period of time for a certain amount of cash. No one tracks the actual songs, they just figure if you're playing background music on the pa/soundsystem and/or you've got bands coming in that's worth x-number of songs, at x-number of dollars average.
  16. Febs

    Febs Supporting Member

    May 7, 2007
    Philadelphia, PA
    Not quite right. A public performance of a copyrighted song is infringement unless you have permission of the copyright holder (or an exception applies).

    Copyright comes into existence when an original work of authorship is fixed in a tangible medium. In the case of a musical work, that means that copyright exists as soon as an original work is recorded or written down. See 17 U.S.C.A. section 102. However, once copyright protection attaches, one of the exclusive rights of the copyright holder is the right to perform the copyrighted work publicly. See 17 U.S.C.A. section 106(4). Under section 501 of the Copyright Act, violation of any of the exclusive rights in section 106 is infringement.

    Under section 101 of the Copyright Act, "perform" means "to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." Thus, a performance at a family barbecue that is not open to the public is probably not infringement. A performance at a bar, on the other hand, would be infringement, unless the bar has secured a license allowing performance of the copyrighted work.
  17. Stick_Player

    Stick_Player Banned

    Nov 13, 2009
    Somewhere on the Alaska Panhandle (Juneau)
    Endorser: Plants vs. Zombies Pea Shooters
    "worst then"? :eek:

    As one who derives income from royalties collected by ASCAP, I am glad they are worse than the IRS.
  18. lfmn16

    lfmn16 Supporting Member

    Sep 21, 2011
    charles town, wv
    You mean because, like the IRS, they collect money that is owed?
  19. Of course they do.

    If it didn't, you would see a lot more clubs booking original acts instead of cover bands.
  20. icecycle66


    Feb 4, 2009
    Yes, how dare they expect me to abide by the rules!