ASCAP is serious

[Nevada Pete]

My point in making the original comment that upset you involved relevance. My last note to you tried to show you why I thought what you wrote was irrelevant. I then tried to put the explanation into a context that I actually thought would be funny given your comment about wanting to win your case. That obviously failed miserably.

Here is the chronology of my comment to you -

Your first comment that I came across was as follows:

"The problem is only a select few recording artists receive any of that money. By and large the system is antiquated, established by consent decree and serves only top top tier musicians. The rest of us suck eggs."

First, we’ve already cleared up the artist/songwriter distinction which you agreed is important. You then, without any evidence or support, make the comment that only a “select few” receive any of the money. ASCAP collected over $1B last year and has over 700,000 songwriters, composers, and publishers as members. Those songwriters, composers, and publishers own and operate ASCAP. If you believe that 700,000 members allow only a “select few” of them to share the money, then you are certainly free to do so, but you’re wrong and I know this first hand from the money my clients receive. That said, I did not comment on this post.

Your next comment in the thread was as follows:

“If ASCAP, etc., would fully computerize their system this, and a lot more to make the system equitable would be possible. There are certain reasons why this probably won't happen. For one thing, Guido and Jo Jo wouldn't like it.”

Again, more mob references and I’m not even sure what “fully computerize their system” means (and I doubt you do either) given the enormity of trying to track every single musical performance of its member's songs. In 2018, the number of individual music performances processed by ASCAP’s proprietary data matching systems was in the trillions. And that still isn't enough. Regardless, I didn’t comment.

Your next comment was:

"Back when songwriters (some of them) used to receive royalties from record sales of their tunes, they would file an application for a "reward". When that was granted (if it was granted), they would start receiving their checks."

When I read that comment, you raised the issue of royalties from sales of records which, per my previous posts, have nothing to do with ASCAP, enforcement, live performance royalties, or anything else connected to the thread. To receive “royalties from record sales”, songwriters did not file an application for a “reward” and there was no “granting” process because ASCAP does not collect or distribute royalties for record sales.

I decided to say something at this point because your comments were wrong and completely irrelevant to the conversation. I assumed that people don’t want this kind of information inserted into the thread and that someone who is inserting it should consider not posting it. If that assumption was incorrect, then I was wrong.

Now you say:

"Frankly, I don't believe you. There's nothing hard to understand...."

Again, royalties from sales have no relevance to ASCAP and so I don’t understand how your links make a connection among (a) an application for royalties from record sales (b) a small program to pay performance royalties for non-captured performances and (c) a very successful artist complaining about live performance royalties. If I should have made the connection, then I was wrong.

I respectfully disagree that anything I've written to you is abusive, but if it made you feel abused, then I'm sorry about that. It was not my intention.

Finally, I'm not moving on for all the unflattering reasons you listed. It's clear that our communication is not working and I see no reason to continue.

Good enough, Boss. Thank you.

I will even more carefully review your several recent posts, and try to learn as much from them as I can, of course. Maybe next time around communication between us will work better. I desire for that to happen, and I have a little better feel now for how you think. You are a highly sophisticated and highly learned attorney, as I have mentioned before, and I am a junk yard dog. I'm told I'm a pretty dang smart junk yard dog. But not as highly educated as yourself, of course. As long as nobody steps on my paws, I don't bite. That's all I ask.

This is the message I was going to put up in answer to your request for a reference regarding the musical work for hire controversy. I'll just include it here, as follows:

Hi,

It’s your favorite member of TB again. This isn’t much of a reference, but it does a good job of briefly explaining what happened with the works for hire controversy better than anything else I have found lately. My original references are here somewhere, but I can't find them. Anyway, there was no page number on this particular reference, so I can't include that. I just transcribed one paragraph off Google Books for fair use.

The Musician's Business and Legal Guide

By Mark Halloran

Musical Works for Hire

“In December 1999, Congress amended section 101 of the US Copyright Act to include sound recordings among the nine categories of works that an employer or commission party may own as works made for hire. The amendment caused a firestorm of controversy among recording artists. Sheryl Crow and many other artists testified against the amendment at Congressional hearings, and as a result, a year later Congress passed the Work Made for Hire Copyright Correction Act of 2000 that repealed the 1999 amendment."

The Musician's Business and Legal Guide

Several extensive scholarly treatments of the subject may be found by doing a Google search for <musical works for hire controversy>.

To avoid further hard feelings, I will leave it up to anybody who is interested to research the matter of just exactly who supported the 1999, “sneak amendment”, as it is often referred to, and who did not.

 

[Ross W. Lovell]

Greetings. My post #250 was to you and expressly says it's voluntary.

If you're waiting for an answer to the "toll" question, then the answer is no. The "toll both" is the label. Access to traditional radio is really about the only thing they have left in their control. The toll is paid through "independent promoters" who have the access to radio people (usually through hookers and coke) and provide the labels (mostly public companies) with cover from being accused of payola.

Does that help?

I guess when you say "voluntary" you mean like my income taxes.

I seem to be paying whether I want to or not.

Like the lottery though, if I don't play, I can't win.

Yeah, that seems legit and not mob-like.

 

[Mike Whitfield]

Good enough, Boss. Thank you.

I will even more carefully review your several recent posts, and try to learn as much from them as I can, of course. Maybe next time around communication between us will work better. I desire for that to happen, and I have a little better feel now for how you think. You are a highly sophisticated and highly learned attorney, as I have mentioned before, and I am a junk yard dog. I'm told I'm a pretty dang smart junk yard dog. But not as highly educated as yourself, of course. As long as nobody steps on my paws, I don't bite. That's all I ask.

This is the message I was going to put up in answer to your request for a reference regarding the musical work for hire controversy. I'll just include it here, as follows:

Hi,

It’s your favorite member of TB again. This isn’t much of a reference, but it does a good job of briefly explaining what happened with the works for hire controversy better than anything else I have found lately. My original references are here somewhere, but I can't find them. Anyway, there was no page number on this particular reference, so I can't include that. I just transcribed one paragraph off Google Books for fair use.

The Musician's Business and Legal Guide

By Mark Halloran

Musical Works for Hire

“In December 1999, Congress amended section 101 of the US Copyright Act to include sound recordings among the nine categories of works that an employer or commission party may own as works made for hire. The amendment caused a firestorm of controversy among recording artists. Sheryl Crow and many other artists testified against the amendment at Congressional hearings, and as a result, a year later Congress passed the Work Made for Hire Copyright Correction Act of 2000 that repealed the 1999 amendment."

The Musician's Business and Legal Guide

Several extensive scholarly treatments of the subject may be found by doing a Google search for <musical works for hire controversy>.

To avoid further hard feelings, I will leave it up to anybody who is interested to research the matter of just exactly who supported the 1999, “sneak amendment”, as it is often referred to, and who did not.

Without doing any research into who supported the '99 Amendment, I'd like to add that the House absolutely needs the Senate's prohibition against Amendments that do not directly pertain to the host bill's subject. Very few Congresscritters even read the final bill before voting (in one famous case the voting had to be extended for several hours because the bill being voted was challenged and in fact hadn't even been finished, let alone posted for review) and quite often all they know about a particular bill or amendment boils down to "People Who Give Me Money tell me this will stop those awful People Who Do Not Give Me Money from doing evil." Amendments in particular are often devastating to individuals, being written purely by special interest lobbyists. I don't expect this to fix anything - the Senate routinely gets around its own prohibitions by taking a compliant but DOA House bill and completely replacing it with their own bill - but anything that exposes lobbyist-written laws to additional cleansing light is a Good Thing. Forcing these amendments to be standalone bills would at least slow down this abuse.

In theory, I agree with everything Music Attorney said and appreciate his or her unique expertise. In practice, from a purely subjective and a complete no-dog-in-the-fight total industry outsider viewpoint, it sure looks like yet another method of moving wealth from a very large number of relatively poor people to a small number of relatively wealthy people. Although it's worth pointing out that venue owners hold the power to rectify some of this just by filing set lists every time, so that the owners of the songs being covered get credit in proper ration rather than the system automatically assuming that those songs being most streamed are also those being most covered in live music.

 

[Cliff Colton]

Perhaps it would be equitable to allow all businesses to charge licensing fees. For example, hand tool makers could form a society to sell all hand tools for personal use only, and those using the tools in the course and scope of commercial business pay a yearly licensing fee.

I’m not a tool maker so it wouldn’t help me. But I like to build with LEGOs, so I’m going to copyright all my creations, and if I ever go into a bar and see someone building one of my LEGO designs, I’m going to write the bar owners a letter telling them they owe me my $8000 licensing fee, or else.

 

[crazyBassClown]

For example, hand tool makers could form a society to sell all hand tools for personal use only, and those using the tools in the course and scope of commercial business pay a yearly licensing fee.

I can feel the sarcasm dripping off this, but a yearly licensing fee is the exact model software developers are trying to move towards, especially for business software.

 

[Nevada Pete]

To avoid further hard feelings, I will leave it up to anybody who is interested to research the matter of just exactly who supported the 1999, “sneak amendment”, as it is often referred to, and who did not.

I can't edit this sentence anymore, and it isn't worded right. The part that says, "To avoid further hard feelings", is not appropriate, and should not be there.

To the best of my knowledge, all those guys who were responsible for the "sneak amendment" fiasco twenty years ago have either retired, or passed away. As far as I know, none of them are actively involved in the music industry anymore.

 

[Music Attorney]

Good enough, Boss. Thank you.

I will even more carefully review your several recent posts, and try to learn as much from them as I can, of course. Maybe next time around communication between us will work better. I desire for that to happen, and I have a little better feel now for how you think. You are a highly sophisticated and highly learned attorney, as I have mentioned before, and I am a junk yard dog. I'm told I'm a pretty dang smart junk yard dog. But not as highly educated as yourself, of course. As long as nobody steps on my paws, I don't bite. That's all I ask.

This is the message I was going to put up in answer to your request for a reference regarding the musical work for hire controversy. I'll just include it here, as follows:

Hi,

It’s your favorite member of TB again. This isn’t much of a reference, but it does a good job of briefly explaining what happened with the works for hire controversy better than anything else I have found lately. My original references are here somewhere, but I can't find them. Anyway, there was no page number on this particular reference, so I can't include that. I just transcribed one paragraph off Google Books for fair use.

The Musician's Business and Legal Guide

By Mark Halloran

Musical Works for Hire

“In December 1999, Congress amended section 101 of the US Copyright Act to include sound recordings among the nine categories of works that an employer or commission party may own as works made for hire. The amendment caused a firestorm of controversy among recording artists. Sheryl Crow and many other artists testified against the amendment at Congressional hearings, and as a result, a year later Congress passed the Work Made for Hire Copyright Correction Act of 2000 that repealed the 1999 amendment."

The Musician's Business and Legal Guide

Several extensive scholarly treatments of the subject may be found by doing a Google search for <musical works for hire controversy>.

To avoid further hard feelings, I will leave it up to anybody who is interested to research the matter of just exactly who supported the 1999, “sneak amendment”, as it is often referred to, and who did not.

OK. Thanks. I did ask for this so let me respond.

If that’s what you’re talking about, then I am familiar with it and also understand why your post confused me. Here's what you said:

"A few decades ago certain factions in the biz succeeded in altering the way royalties were paid to make many formerly chargeable works into "works for hire" where no royalties are paid. This totally devastated songwriters. It took a grass roots movement, a considerable sum of money and an army of lawyers to fix it. So who will put together the army of lawyers and pay for them now?"

1. Musical compositions were eligible to be works made for hire in 1976. And I have a number of clients (e.g., film composers) who create works made for hire and get paid significant royalties. WMFH does not preclude royalties and it certainly hasn't devastated songwriters in any way. On the other hand, sound recordings were not listed as being eligible as WMFH under the 1976 law.

2. What you're referring to is when the RIAA (the trade organization that represents hundreds of record labels) managed to include language in legislation in 1998-99 making sound recordings among the enumerated works that can qualify as a works made for hire (i.e., like musical compositions had been since 1976). This happened as a function of complete and utter political corruption, influence, and the fact that Congress was totally asleep at the switch. In 1999, Mitch Glazier, a Congressional staff attorney and House Intellectual Property subcommittee staffer, inserted, without public notice or comment, substantive language into copyright legislation which, as I said, classified sound recordings as "works made for hire" under the Copyright Act. Glazier claimed numerous times the 4 or 5 words he added to the legislation were merely a "technical correction" to the law and therefore, didn't require notice and comment. However, it was an enormous change to the law with huge consequences for labels and artists.

3. Thankfully, it didn't really take a grass roots movement and an army of lawyers to fix. Once the provision was discovered, there was such a huge outcry from impacted parties, that Congress realized it had been lied to and, in an effort to save face, realized they needed to repeal the provision. Of course, there was plenty of political grandstanding (and lawyers) to save face for not reading the provision, not understanding the provision, and simply accepting the word of biased staff members and lobbyists. However, it was always going to be repealed once it was discovered.

4. As a side note, Glazier left Congress to join the RIAA in 2000 and is now president of the RIAA.

 

[Music Attorney]

True, except the executives at non-profits tend to be VERY well paid, and can chose to spend money on corporate expenses like hookers and coke, rather than profits.

ASCAP is a nonprofit corporation. Nonprofit corporations in the US must submit their financial statements on IRS Form 990 which includes the salaries of directors, officers, and key employees. Both the IRS and the nonprofit corporation are required to disclose the information they provide on Form 990 to the public. Not true for SESAC.

In addition, ASCAP publicly posts its total revenue and the percent of that total revenue paid to its members. I am not aware of SESAC posting any of that info (not that they need to as a private company). Beyond that info, ASCAP and others post info that helps with transparency in a way that SESAC doesn't.

If you're in Australia, there's always APRA. I don't know much about it, but I have 2 Aussie clients who are members and no complaints.

The answers to your 3 questions are readily available online and, to some degree, have already been answered here (albeit not in a nice tidy package where you don't have to connect the dots).

It's clear you have very strong views on this stuff. If you were a member of ASCAP and had a bad experience, then it's unlikely anything I say is going to change your mind. If someone you know had a bad experience, then, again, I doubt what I have to say is going to override that.

If you have no experience (yours or others), then the discussion is completely academic and I have no idea why you would want to engage with someone who has a conflicted agenda and meaningless statements.

I did say previously I was moving on, but I'm not sure if you saw that since it seems you've addressed a couple of posts my way. Hopefully you'll see this one and understand if I don't respond.

 

[crazyBassClown]

I did say previously I was moving on, but I'm not sure if you saw that since it seems you've addressed a couple of posts my way. Hopefully you'll see this one and understand if I don't respond.

I actually had already responded to those posts before I realised they were yours.
My desire to comment is related to my BS detector going off.

Providing a significant response to one of my questions while completely ignoring the other

Or is the law as currently set up massively biased towards ASCAP/BMI?

is also an answer to both questions.
Given how pro this you seem I'm guessing there is no answer to my question about bias that is flattering in any way.

Much like the quote that caused you to say you were ignoring me

You and the artists you represent send in performance claims which are then used to justify taking a piece of the money bars are forced to pay to allow cover bands to play songs even though most artists songs will never actually be covered in those bars.

the silence suggests that too is also essentially accurate.

 

[Nevada Pete]

I can feel the sarcasm dripping off this, but a yearly licensing fee is the exact model software developers are trying to move towards, especially for business software.

FWIW, I think Pro Tools, the professional digital audio workstation software (DAW) has shifted to such a yearly licensing system (at least partially).

 

[Mike Whitfield]

I can feel the sarcasm dripping off this, but a yearly licensing fee is the exact model software developers are trying to move towards, especially for business software.

Yep. For those that are essentially monopolies, like AutoCAD/Revit, we've been forced to accept that the developers now operate like a Mafia silent partner: good times or bad, they get their money first, with absolutely no responsibility to fix bugs, update or improve their products, or, well, do anything. Others we've replaced or just dropped.

 

[Runnerman]

Here's a couple things that I don't understand...

Youtube is full of cover performances of most songs and more being uploaded every day. Does Youtube pay every time someone clicks and listens to one of those covers (or original recordings for that matter)? Or are they going to come after the cover artist some day?

Private parties and weddings. How do those work? Is the cover band supposed to report? Are DJ's supposed to report?

What about playing canned music before/between sets at a private party? I'm wondering about that because of the jukebox thing. Does that need to be reported?

I have searched the ASCAP site and haven't found conclusive answers.

 

[LowRick]

I know several bar owners and 4000 a year for music rights will mean the end of many bars in my neighborhood.

We got a similar institution here as ASCAP which is typical government institution where a lot goes wrong and a lot of "costs" are made which would have ended normal companies a long time ago. The fee they pay artists is but a little bit of the money they get in with "offers" to bar owners like these. Some artists don't even get anything at all. Cover bands het in Trouble with the institution as well because they need to pay up as well...

I'm no fan of ASCAP and their local equivalents.

 

[Febs]

Private parties and weddings. How do those work? Is the cover band supposed to report? Are DJ's supposed to report?

The exclusive right granted in section 106(4) for a musical work is the right "to perform the copyrighted work publically."

Under the definitions in section 101 of the Act, "To perform or display a work “publicly” means ... to perform ... 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."

I've always read these provisions to mean that a performance at a wedding or private party is not a public performance subject to the exclusive rights granted by the Act, but I've never specfically researched whether those provisions have been litigated in that context. I'd be curious to get @Music Attorney's take on that question.

 

[Runnerman]

The exclusive right granted in section 106(4) for a musical work is the right "to perform the copyrighted work publically."

Under the definitions in section 101 of the Act, "To perform or display a work “publicly” means ... to perform ... 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."

I've always read these provisions to mean that a performance at a wedding or private party is not a public performance subject to the exclusive rights granted by the Act, but I've never specfically researched whether those provisions have been litigated in that context. I'd be curious to get @Music Attorney's take on that question.

A recent example of a private party....we have played a couple of tailgate parties at a local University outdoors on fraternity properties. 200-300 people present for each gig.

 

[aborgman]

An entire industry and profession has been literally wiped off the face of the earth by the artificial presence of music streaming.

It has?

There are still musicians. There are still producers. There are still recordings being made.

No industry or profession has been wiped off the map.

I agree things like this have, of course, happened before. For example, Oliver Heaviside (the great scientist) suffered hardship in his childhood because his father who was an engraver lost his employment to the new technology of photography. That's not exactly the same thing as what's happening with music, is it?

Yes, it is.

The market no longer values a product at a level it previously did. Whether that is because of a replacement good, a general change in societal tastes, or anything else is irrelevant. It's just basic business economics.

So you are okay with blowing up the profession of song writer and recording artist?

I'm OK with the market deciding they value the profession of song writer and recording artist less, and engaging in the economic behavior that entails.

Folks aren't entitled to make a good living doing what they want.

Why should a small group of highly computerized clepto-plutocrats be permitted to literally give away recorded music, and in the process disrupt and devalue that commodity to the point of practically extinguishing an entire industry while reaping vast profits for themselves in the process?

Because the artists have signed contracts allowing it.

I'm not big on protecting people from their own choices.

 

[aborgman]

I can feel the sarcasm dripping off this, but a yearly licensing fee is the exact model software developers are trying to move towards, especially for business software.

As someone married to a certified software asset manager...

They're moving in this way specifically to extract every possible penny of profit while screwing customers in every imaginable way.

 

[LowRick]

Music is art. If you can make a living out of practicing it, Nice. If not, get your money elsewhere. If however, you love making music, keep doing it in both cases.

Contracts are economics. They mean little to the proffession of mucisians, but a lot to the industry surrounding it.

The combination of the two has only started occuring in the 60s. I've enjoyed it a lot personally (only in listening), but the fact that people earn an amazing amount of money with it is pretty unique. A lot of artists lived in poverty.

Is it right they lived in poverty? no. It's awesome people get recognised as artists when they make something great.
But then again, it would be awesome as well when people who worked their backs sore day after day would get to live in a villa on Palm Beach when they retire.

So more things are probably not right...

 

[Mike Whitfield]

I’m also not big on protecting people from their own choices, but it’s possible for all possible choices to be artificially constrained by monopolistic forces. If the only way to get anything is to sign away the lion’s share, then we don’t have freedom. Go back to the fifties and sixties and one finds that performing artists were near the bottom of the pile in benefiting from their own labor, with CCR standing as the absolute worst (although the often illiterate black bluesmen before the sixties got pretty much the same deal.) Frankly I’m alot more concerned with the general attitude that “I should get what I want/need for free” but there’s no denying that power nearly always devolves into fewer and fewer hands unless otherwise constrained. And whether it’s Marxism or unrestrained capitalism, power tends to serve those who wield it, no matter in whose name it is nominally wielded.

 

[David Jayne]

Music is art. If you can make a living out of practicing it, Nice. If not, get your money elsewhere. If however, you love making music, keep doing it in both cases.

Contracts are economics. They mean little to the proffession of mucisians, but a lot to the industry surrounding it.

The combination of the two has only started occuring in the 60s. I've enjoyed it a lot personally (only in listening), but the fact that people earn an amazing amount of money with it is pretty unique. A lot of artists lived in poverty.

Is it right they lived in poverty? no. It's awesome people get recognised as artists when they make something great.
But then again, it would be awesome as well when people who worked their backs sore day after day would get to live in a villa on Palm Beach when they retire.

So more things are probably not right...

IMO music is ENTERTAINMENT. Entertain the right people and they'll pay you well for it. Nobody 'deserves' jack simply because they deem themselves 'artists.'