ASCAP is serious

[Downunderwonder]

^ That would be better without the sarcasm, but thanks!

What about the Happy Birthday kerfuffle?

 

[Nevada Pete]

The answer is that I don’t know whether those events have been litigated as to a public performance right, but my understanding as to weddings is the same as yours. It’s very often the case with legislation that it’s simply impossible to draft every possible exception to a rule. In those instances, Congress uses more general language that is meant to convey some specificity as well as the “spirit of the law.” From there, litigation ensues to determine whether the facts and circumstances of any particular situation fall inside or outside the intent of the Congressional language. In that regard, my general understanding is that birthday parties, anniversaries, and other events that are invitation only and not open to the public and not for profit would be considered private. Even if a PRO could make the argument that weddings, anniversaries, etc. were public performances, would they? Not particularly good optics, imo.

Similarly, I don’t see PROs going up to a traditional tailgate party outside the stadium on game day to extract a fee. On the other hand, if some event organizer put together a “for profit” tailgate party where admission was charged, then a PRO might very well go knocking on that door. Now change the “for profit” tailgate party to one that’s using the money for school needs. I don’t know on that one.

Again, there would be no way to know the outcome because the facts and circumstances of each case are different and nothing definitive can be ascertained until the people in the jury box or the person in the black robe makes a decision. However, that decision would only apply to those facts and circumstances. If you start over with a slightly different tailgate party event, then you have to start the whole process all over again.

Does that help your curiosity?


As a side note, and with apologies in advance for hijacking your post, it got me thinking about something in connection with another post in this thread.

A bit of background. Some clown in another post asked me a series of questions and because I gave him a “significant response” to one and ignored others (which I didn’t do – I simply said the answers were readily available online) it set off his “BS detector”. My failure to respond apparently constituted some kind of confirmation of something. And the fact that I specifically didn’t answer one question about massive bias must have been because I wouldn’t be able to answer the question without making ASCAP/BMI look bad.

One question I suggested he research himself was: “So how many of these performing rights organisations does a bar need to pay off to be allowed to have music performed in their venue?”. Following my own advice, I Googled “How many performing rights organizations does a bar need to pay to license music” and one of the first referenced links said this: “In a perfect world, you’d pay one PRO. But music licensing is…complicated (that’s why a chat with your lawyer is important). The major PROs are BMI, SESAC, GMR, and ASCAP. Each PRO represents different artists. Some bars pay all 4 PROs for music licensing, others opt to pay a couple. Each PRO has an online database so you can see which artists are represented.”

Other than the reference to artists, it seemed like a pretty good answer, but what do I know. And now on to the reason for the hijack and why your post inspired it.

Another question from the poster was “Or is the law as currently set up massively biased towards ASCAP/BMI?” Apart from the fact that I wasn’t clear on the specific law or laws he was referring to and I wasn’t clear on what he meant by massively biased towards ASCAP/BMI, it didn’t seem like a particularly constructive use of my time. Hiding is so much easier and enjoyable and gives the other side a sense of victory.

But then you had to go and say this:

"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."

That info made me wonder whether potential massive bias towards the PROs could be found in that law. It’s a very simple, but powerful proposition: songwriters (or companies they designate like ASCAP) have the exclusive right to decide whether permission is granted to perform musical compositions publicly and under what terms. Assuming there is agreement that creators should have this exclusive right, then creators get to do whatever they want with their songs in terms of public performances, subject to whatever limitations may exist on that exclusive right (e.g., fair use). That would include having the right to assign or license some or all of their rights to someone else. One of those assignable rights would include the right to have a third party like ASCAP or BMI act as your agent in terms of the collection, licensing, enforcement, and pricing, of the public performance right.

Clearly, the US Congress must have given songwriters and publishers all that power based on some serious backroom deals and political hijinks. Surely, they couldn’t have just intended something as simple as a creator being able to control the public performance of their musical work. And there’s no way they were just fulfilling their constitutionally mandated duty “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Nope, it had to be something more nefarious.

And then I found it. It was in 1897 when the US Congress extended the exclusive right of public performance to musical works for the first time. Although ASCAP would not be founded until nearly 20 years later, they must have known the primitive environment of those times would make collection, licensing, enforcement, etc. extremely difficult and that some enterprising individual (e.g., Victor August Herbert) would come along and use this massively biased law to their advantage and be first to market with a product and service that helped mitigate some of the difficulties faced by songwriters and publishers in that environment.

As if that wasn't favorable enough to ASCAP (and BMI which didn’t come along until 1939), the Supreme Court of the United States decided to get involved and provide further bias and favoritism on a massive scale. The Supreme Court was presented with 2 cases which they combined because they both presented the same question: whether the performance of a copyrighted musical composition in a restaurant or hotel without charge for admission to hear it infringes the exclusive right of the owner of the copyright to perform the work publicly for profit. And here is what the Supremes concluded:

“If the rights under the copyright are infringed only by a performance where money is taken at the door they are very imperfectly protected. Performances not different in kind from those of the defendants could be given that might compete with and even destroy the success of the monopoly that the law intends the plaintiffs to have. It is enough to say that there is no need to construe the statute so narrowly. The defendants' performances are not eleemosynary. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order, is not important. It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere. The object is a repast in surroundings that to people having limited powers of conversation or disliking the rival noise give a luxurious pleasure not to be had from eating a silent meal. If music did not pay it would be given up. If it pays it pays out of the public's pocket. Whether it pays or not the purpose of employing it is profit and that is enough.”

So how do we really know the Supreme Court was biased and wanted to set up the law in favor of ASCAP (and BMI which did not exist) so ASCAP (and eventually BMI) could set up service models for songwriters? It’s simple. The Supreme Court frequently decides in favor or against a law on a 5-4 basis based on ideological lines. However, in this case, the court was unanimous and that almost never happens. Surely there was influence of some kind to secure a 9-0 vote in favor of songwriters and publishers.

As a side note, the language from the Court’s opinion quoted above was delivered in 1916 by Justice Oliver Wendell Holmes, who is widely regarded as one of the towering legal figures in US history, but, unfortunately, not someone who was without bias or favor.

Great information, music attorney. Incredible. That's a lot of effort that went into putting that up there, and considerable specialized knowledge to even be able to make observations like that for us to learn from. I kindly take exception, though, to referring to a fellow TB member as, "some clown", just because he sees things differently than you do. Or, because in his mind he senses bias in your comments, whether it's really there or not. We don't have to demean people just because their comments seem invalid to us, or because their comments are invalid. Yes?

<Talk Bass Forum Rules: Rule #1: Respect your fellow members. All registered users must address fellow members with the utmost respect at all times. If you do not agree with a fellow member, be courteous in your response.>

Of course, if you want to take rule No. 1 apart ultra legalistically, you could argue that since you didn't actually address the individual you called a "clown", but instead, merely referred to him, the rule doesn't apply to your comment. The flip side of that is the spirit of the rule, which to my way of thinking is that we should always be respectful to each other on the forum. This is important to me personally, and I believe it's probably also important to many TB members.

May I point out, please, that you have a bad habit of ignoring forum rule No. 1. It detracts from what otherwise is your highly valued and generous willingness to share your learned knowledge and experience with us, i.e., something which is not otherwise ordinarily available. Just saying.

 

[gln1955]

Great information, music attorney. Incredible. That's a lot of effort that went into putting that up there, and considerable specialized knowledge to even be able to make observations like that for us to learn from. I kindly take exception, though, to referring to a fellow TB member as, "some clown", just because he sees things differently than you do. Or, because in his mind he senses bias in your comments, whether it's really there or not. We don't have to demean people just because their comments seem invalid to us, or because their comments are invalid. Yes?

<Talk Bass Forum Rules: Rule #1: Respect your fellow members. All registered users must address fellow members with the utmost respect at all times. If you do not agree with a fellow member, be courteous in your response.>

Of course, if you want to take rule No. 1 apart ultra legalistically, you could argue that since you didn't actually address the individual you called a "clown", but instead, merely referred to him, the rule doesn't apply to your comment. The flip side of that is the spirit of the rule, which to my way of thinking is that we should always be respectful to each other on the forum. This is important to me personally, and I believe it's probably also important to many TB members.

May I point out, please, that you have a bad habit of ignoring forum rule No. 1. It detracts from what otherwise is your highly valued and generous willingness to share your learned knowledge and experience with us, i.e., something which is not otherwise ordinarily available. Just saying.

MA's response was entirely justified, IMO. Face it, there are clowns on here and much worse. I am grateful he is willing to dive into the cesspool of ignorance that these threads always turn into.

 

[Febs]

Does that help your curiosity?

It does and I appreciate you taking the time to respond.

The answer is that I don’t know whether those events have been litigated as to a public performance right, but my understanding as to weddings is the same as yours. It’s very often the case with legislation that it’s simply impossible to draft every possible exception to a rule. In those instances, Congress uses more general language that is meant to convey some specificity as well as the “spirit of the law.” From there, litigation ensues to determine whether the facts and circumstances of any particular situation fall inside or outside the intent of the Congressional language. In that regard, my general understanding is that birthday parties, anniversaries, and other events that are invitation only and not open to the public and not for profit would be considered private. Even if a PRO could make the argument that weddings, anniversaries, etc. were public performances, would they? Not particularly good optics, imo.

Since my last post, I've since done some brief and admittedly non-exhaustive research and didn't find any reported decisions on the issue one way or the other, which suggests that it's not a type of performance that the PROs are targeting in litigation (probably for exactly the reasons you indicate).

 

[waveman]

I have mixed feelings on this. Yes, composers should be paid, but isn't so blo-jo playing a cover like free advertising in a way? If they didn't play the songs, they may not be as popular as they are.

 

[aborgman]

One question I suggested he research himself was: “So how many of these performing rights organisations does a bar need to pay off to be allowed to have music performed in their venue?”. Following my own advice, I Googled “How many performing rights organizations does a bar need to pay to license music” and one of the first referenced links said this: “In a perfect world, you’d pay one PRO. But music licensing is…complicated (that’s why a chat with your lawyer is important). The major PROs are BMI, SESAC, GMR, and ASCAP. Each PRO represents different artists. Some bars pay all 4 PROs for music licensing, others opt to pay a couple. Each PRO has an online database so you can see which artists are represented.”

Other than the reference to artists, it seemed like a pretty good answer, but what do I know.

Eh... it seems like an answer... and a correct answer...

...but definitely not a "good" answer.

Surely, they couldn’t have just intended something as simple as a creator being able to control the public performance of their musical work. And there’s no way they were just fulfilling their constitutionally mandated duty “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

If they just intended something as simple as a creator being able to control the public performance of their musical work - that would be a violation of that Constitutionally mandated duty.

If they were just fulfilling their constitutionally mandated duty, then they couldn't have just intended something as simple as a creator being able to control the public performance of their musical work.

The two are at cross purposes.

They were just fulfilling their constitutionally mandated duty “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."


Of course - copyrights term has been extended to the point that it no longer truly qualifies as a "limited time" and thus does not advance the state of the art.

 

[ak56]

I have mixed feelings on this. Yes, composers should be paid, but isn't so blo-jo playing a cover like free advertising in a way? If they didn't play the songs, they may not be as popular as they are.

So, the composer is being paid by "exposure"?

 

[soflbass]

I hear a lot of people mentioning that ASCAP and BMI are nonprofit organizations. Up until 2015, the NFL was also a nonprofit organization. And Rodger Goodell's salary was $32 million dollars that year.

My point is that just because an organization is non for profit, doesn't mean the fat cats aren't making lots of money.

 

[waveman]

So, the composer is being paid by "exposure"?

Well, yes. If you can't track profits from performance to composer, it's a racket anyway. And, that is implying there is a net profit for the performer, which for the most part, there is little of that, if any, when you count the costs for time, transportation, etc

 

[Music Attorney]

Great information, music attorney. Incredible. That's a lot of effort that went into putting that up there, and considerable specialized knowledge to even be able to make observations like that for us to learn from. I kindly take exception, though, to referring to a fellow TB member as, "some clown", just because he sees things differently than you do. Or, because in his mind he senses bias in your comments, whether it's really there or not. We don't have to demean people just because their comments seem invalid to us, or because their comments are invalid. Yes?

<Talk Bass Forum Rules: Rule #1: Respect your fellow members. All registered users must address fellow members with the utmost respect at all times. If you do not agree with a fellow member, be courteous in your response.>

Of course, if you want to take rule No. 1 apart ultra legalistically, you could argue that since you didn't actually address the individual you called a "clown", but instead, merely referred to him, the rule doesn't apply to your comment. The flip side of that is the spirit of the rule, which to my way of thinking is that we should always be respectful to each other on the forum. This is important to me personally, and I believe it's probably also important to many TB members.

May I point out, please, that you have a bad habit of ignoring forum rule No. 1. It detracts from what otherwise is your highly valued and generous willingness to share your learned knowledge and experience with us, i.e., something which is not otherwise ordinarily available. Just saying.

Oh good lord. His name is CrazyBassClown and I was riffing on that.

And you think CBC has followed that rule in connection with me? I don't care what he says about me, but if you're going to call people out, then at least be consistent.

I do think my tone was justified as an in-kind response, but I'll take note of your concern.

 

[Music Attorney]

MA's response was entirely justified, IMO. Face it, there are clowns on here and much worse. I am grateful he is willing to dive into the cesspool of ignorance that these threads always turn into.

Thanks for the support. Appreciate it.

 

[Music Attorney]

Eh... it seems like an answer... and a correct answer......but definitely not a "good" answer.

OK. Hopefully you can provide him with one.

If they just intended something as simple as a creator being able to control the public performance of their musical work - that would be a violation of that Constitutionally mandated duty.

If they were just fulfilling their constitutionally mandated duty, then they couldn't have just intended something as simple as a creator being able to control the public performance of their musical work.

The two are at cross purposes.

They were just fulfilling their constitutionally mandated duty “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Of course - copyrights term has been extended to the point that it no longer truly qualifies as a "limited time" and thus does not advance the state of the art.

Respectfully, I don’t understand your criticism, but I don’t have time to get into a debate about constitutional law (if, in fact, that is what your comments involve).

Similarly, the length of the copyright term is a subject of great debate that I don’t think is objectively quantifiable (either shorter or longer).

 

[Music Attorney]

^ That would be better without the sarcasm, but thanks!

What about the Happy Birthday kerfuffle?

What about it?

Not sure what you're trying to find out since that debacle had many angles to it, but there is one that's very relevant to this thread. Don't have time now, but will try to revisit this in the future.

 

[Beersurgeon]

Save the monkeys, mice and rabbits.....

Ethics support medical testing on lawyers!

And none of us would care either!!!

 

[crazyBassClown]

Oh good lord. His name is CrazyBassClown and I was riffing on that.

And you think CBC has followed that rule in connection with me? I don't care what he says about me, but if you're going to call people out, then at least be consistent.

I do think my tone was justified as an in-kind response, but I'll take note of your concern.

I'm not offended by your comments, but the only way I can see I may have violated that rule is by suggesting you have a bias. I stand by that comment.
It seems the legal answer is as I expected, you need to pay a fee to ALL the performance rights organisations or check every single piece of music played in your establishment for which org it belongs to before you can have it played.
So 2 questions, does this seem at all reasonable or practical(completely different from legal).
And why are ASCAP seemingly the only ones making cases like this? (and making themsleves look bad?)

 

[Music Attorney]

I'm not offended by your comments, but the only way I can see I may have violated that rule is by suggesting you have a bias. I stand by that comment. It seems the legal answer is as I expected, you need to pay a fee to ALL the performance rights organisations or check every single piece of music played in your establishment for which org it belongs to before you can have it played.
So 2 questions, does this seem at all reasonable or practical(completely different from legal).
And why are ASCAP seemingly the only ones making cases like this? (and making themsleves look bad?)

Before I answer your questions, let me give you my context for doing so because, to me, it’s important. The US declared its independence from the Brits on July 4, 1776, and that independence was recognized by the Brits in 1783. Imagine that: You are now a citizen of a country that had never existed before.

4 years later in 1787 the founding fathers of this new country created a document that established a national government, guaranteed certain basic rights, and set forth some fundamental laws. In that document, it says [the United States Congress shall have power] “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Think about that for a moment. A group of men were putting together a blueprint for a new country and one of the things they thought was important enough to include in the founding document was a government granted monopoly to authors. I cannot emphasize how impactful that is to me. Therefore, I do think it’s reasonable that an author (songwriter) has the exclusive right (i.e., a monopoly) to grant permission (or deny it) as far as the public performance of their song.

But here’s where it gets tricky for me. That document said the exclusive right should be for a limited time. And my personal opinion is that there is absolutely no objective way to establish how limited that time should be (i.e., how long should a songwriter have that exclusive right) in order “To promote the… useful Arts.” Therefore, until such time as someone can show me credible evidence as to how long that time period should be (or even evidence that shows a strong correlation to how long it should be), I simply have no interest in debating or discussing it with you or anyone else. It’s a purely hypothetical or academic endeavor that seems best geared for people who like to pontificate.

So yes I think it’s reasonable that a bar owner is responsible for paying a fee for all music performed in their establishment (with whatever exceptions the law allows) and they should assume the responsibility for making sure they get permission from the person (or their agent) who has been granted that exclusive right (just like they need to comply with numerous other state and federal laws).

However, what I’m not sure about is how long that responsibility should last. But what I am sure about is that Congress gets to make that decision and when it agreed to make the time period last for 70 years after the death of the author (and longer for a work made for hire) and the Supreme Court didn’t declare that time period unconstitutional, the whole point became moot. It is what is and I have to deal with things as they are.

As far as whether it’s practical, I'm not a bar owner, but unless I’m missing something, it would seem like most bars are in a position to deal with 2, possibly 3, and at most 4, organizations that will give them the necessary permission to perform millions and millions of songs for 1 year (or more depending on the fee they want to pay). For the most part, I would imagine that most bars would be pretty well covered by 2 licenses (ASCAP/BMI) without having to go through the process again for 1 (or more years). Therefore, I think the burden is reasonable in light of why that burden exists.

I honestly do not know whether ASCAP is “the only ones making cases like this”. What I do know is that every organization whether it’s ASCAP or the Department of Justice or a state prosecutor’s office has limited resources and the idea of making someone an “example” in an effort to get others to comply has been around since long before you or I were born. You can say it makes them look “bad”, but it’s like when I see some inane and ridiculous advertisement and remark “What a stupid ad. Why would they do that?”. And the answer is always the same: because it works.

Alternatively, PROs do not own or control anything. All of their rights and power are derived from the rights and powers given to them by their songwriter and publisher members. In the case of ASCAP which is controlled by its members, if those songwriter and publisher members don’t like the way the organization they control is doing business (including the use of litigation), they have the power to change it. If certain members get out-voted on issues they care about, then they have the option to leave and move their catalogue elsewhere when their membership is up.

And with that, me and my bias will leave you to your musings.

 

[Febs]

And why are ASCAP seemingly the only ones making cases like this? (and making themsleves look bad?)

I honestly do not know whether ASCAP is “the only ones making cases like this”.

They are not.

Invalid Link Removed

Historic Aurora Bar Sued for Copyright-Infringing Karaoke

 

[aborgman]

OK. Hopefully you can provide him with one.

Of course I can't - because there intentionally isn't one.

The system is set up in the opaque manner it is intentionally.

Respectfully, I don’t understand your criticism, but I don’t have time to get into a debate about constitutional law (if, in fact, that is what your comments involve).

Similarly, the length of the copyright term is a subject of great debate that I don’t think is objectively quantifiable (either shorter or longer).

The term of copyright has been extended at the behest of IP owners lobbying to the point that it no longer serves it Constitutional purpose of advancing the state of the art.

 

[aborgman]

4 years later in 1787 the founding fathers of this new country created a document that established a national government, guaranteed certain basic rights, and set forth some fundamental laws. In that document, it says [the United States Congress shall have power] “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Think about that for a moment. A group of men were putting together a blueprint for a new country and one of the things they thought was important enough to include in the founding document was a government granted monopoly to authors.

They pretty much (like the rest of the legal system) were largely just hewing to existing English law. It wasn't a new concept.

Therefore, I do think it’s reasonable that an author (songwriter) has the exclusive right (i.e., a monopoly) to grant permission (or deny it) as far as the public performance of their song.

It’s reasonable that an author (songwriter) has the exclusive privilege (i.e., a monopoly) to grant permission (or deny it) as far as the public performance of their song for a limited time, said monopoly being granted not out of the songwriters entitlement - but to advance the state of the art.


The purpose of IP law is not to protect the inventor - it is using protecting the inventor as an incentive to help society as a whole. It is a privilege granted by society in exchange for a benefit to society.

 

[lat]

To me, this is a symptom of the general collapse of the music industry. One of many instances of things no longer working the way they used to ... or at least the way they were intended to... one could easily argue that this has never worked properly.