ASCAP unlicensed venue-cancel gig?

[electracoyote]

I would be interested in hearing MA's perspective on that point. The fact that the PROs prosecute venues rather than bands seems to be a function of the way the PROs have developed and implemented their licensing schemes, rather than any limitation on liability imposed by the Copyright Act itself. The provisions in the Copyright Act defining what constitutes infringment with respect to musical works (specifically, sections 106(4) and 501) do not appear to limit infringement to venues to the exclusion of the bands that perform in those venues.

Technically, this is correct. Any and all parties contributing to the copyright infringement of intellectual property can be held accountable. That includes the band performing the copyrighted material without permission or license.

Practically, I agree with ChrisB2. In a legal sense, narrowing your pursuit to the venue owner is far more likely than naming the band, or any individual members of the band, in a lawsuit. Chances of the band being sued are very slim. Caveat: I wouldn't want to be in the unlucky band members when ASCAP decides to make an exception to the norm and an example of the band. Stranger things have happened.

The real shame here is, ASCAP licensing is an operating expense for a venue that offers anything other than original live entertainment. That includes soundfiles, analog and digital radio, DJs', and cover bands. I take a dim view of a venue that is unwilling to make this relatively modest investment to legitimize their business.

 

[Mystic Michael]

I would be interested in hearing MA's perspective on that point. The fact that the PROs prosecute venues rather than bands seems to be a function of the way the PROs have developed and implemented their licensing schemes, rather than any limitation on liability imposed by the Copyright Act itself. The provisions in the Copyright Act defining what constitutes infringment with respect to musical works (specifically, sections 106(4) and 501) do not appear to limit infringement to venues to the exclusion of the bands that perform in those venues.

If this is the case, then it probably boils down to a practical decision about who has the deepest pockets: the venues or the bands. Prosecuting bands is probably not worth even the amount of money it typically takes to engage a lawyer to do it...

The real shame here is, ASCAP licensing is an operating expense for a venue that offers anything other than original live entertainment. That includes soundfiles, analog and digital radio, DJs', and cover bands. I take a dim view of a venue that is unwilling to make this relatively modest investment to legitimize their business.

Hear, hear...

MM

 

[MNAirHead]

I've been stopped by the ASSKap cops --- not as bad as everyone makes it sound like.

 

[bluewine]

My band has a gig booked at a small bar. We were informed that they had a visit from ASCAP the other day. Apparently the venue isn't licensed. We were informed by the owner that ASCAP is planning on stopping out the day of our gig to see to verify the band is playing and told the owner she will be fined unless she pays. Seems the owner has been avoiding them for some time, but she has a "screw them" type attitude and wants us to play.

1. As a band, do we have any responsibility to check if a venue is licensed before booking a gig there?

2. Can ASCAP do anything to the band if we play knowing the venue is not licensed? Fine? Shut us down?

What would or could happen? Anyone run into this type of thing?

Any advice greatly appreciated.

We just lost one of our steady gigs because of ASCAP. They charge by the square foot of the venue. In this case ASCAP knew this tiny corner bar booked live cover bands. They came in and let the owner have it.

The owner contacts us and told us he is no longer having bands play.

In this case, and because the place is so small ASCAP didn't really want all that much $$$$$$.

blue

Off Topic;

Caught Slash on Conan last night, I was impressed with every aspect of the performance;

Slash "Standing In The Sun" 10/04/12 - CONAN

 

[jaywa]

Sorry to hear about the lost gigs, Blue.

Hopefully you guys will be able to replace them with others that pay same or better.

 

[ChrisB2]

Sorry to hear about the lost gigs, Blue.

Hopefully you guys will be able to replace them with others that pay same or better.

Yeah +1

I was in a band once that that happened to. Little crummy bar a million miles from nowhere, but a fun little hole to play. The lady told us she got threatened by ASCAP and she stopped having bands...

 

[MatticusMania]

Yes, the venue owner told us about her visit from ASCAP. She's fighting the system and asked if we would still play.

My gut instinct tells me it could get ugly and who knows what will happen. She's always paid us in the past, but who knows how this will shake out. I'm thinking we just drop the gig to avoid any hassles, but I still want to know what ASCAP could do to the band, if anything.

Go in there and play nothing but originals!

 

[Music Attorney]

I would be interested in hearing MA's perspective on that point. The fact that the PROs prosecute venues rather than bands seems to be a function of the way the PROs have developed and implemented their licensing schemes, rather than any limitation on liability imposed by the Copyright Act itself. The provisions in the Copyright Act defining what constitutes infringment with respect to musical works (specifically, sections 106(4) and 501) do not appear to limit infringement to venues to the exclusion of the bands that perform in those venues.

Thanks for asking. Don't have time for full analysis right now.

OP - play the gig if you don't mind the possibility of not getting paid. If you read my posts in the thread about ASCAP and the band (country?) that was playing at an event (country fair?) and was worried about an ASCAP license, I think you'll get most of what you need as to why I would say the same thing here.

Febs - legal analysis is correct. From a practical standpoint, organizations that exist to service publishers/songwriters don't win many points suing musicians/songwriters. The "deep pocket" analysis mentioned elsewhere is also, obviously, relevant.

Best,
MA

 

[bluewine]

Yeah +1

I was in a band once that that happened to. Little crummy bar a million miles from nowhere, but a fun little hole to play. The lady told us she got threatened by ASCAP and she stopped having bands...

Thanks, they approached another lake bar we play and the owner simply through them out.

Off topic :

For those that like this sort of thing, don't forget about Slash.
I've always liked Slash, he is no joke thats for sure and for me , he knows what's happening.



blue

 

[Downunderwonder]

Curious, is live music charged at higher rate than canned or DJ?

 

[MatticusMania]

For those that like this sort of thing, don't forget about Slash.
I've always liked Slash, he is no joke thats for sure and for me , he knows what's happening.

 

[57pbass]

The bar owner should do the right thing and pay the fee....it's only a few hundred dollars.

 

[the Arsonaut]

the real gripe is, HOW they do it....

It's a bracket system, capacity wise in most cases.
They contact you, claim they've done all their homework, cased yer joint, and boost the numbers...you're an 88 cap jazz club, but they've got you in the 200-299 cap bracket. You don't have a jukebox, but they're charging for "mechanical music".
You don't have a dancefloor, but they're charging for an "enhanced environment".

And then they Magic Up (tm) the numbers, knock off those discrepancies that you've pointed out...so you pay $900, instead of the $1650...and don't tell you about the "blanket policy" of $500 that would cover all PRO licensing...until one of the other companies comes along to claim their very fair share.

 

[JimmyM]

I would do the gig but make her guarantee in writing that you get paid in full if ASCAP shuts her down.

 

[the Arsonaut]

on the flipside,

I am looking into a way to retroactively sue writers and publishers for the pisspoor performance of their songs by bands...It's going to be class-action so, *ahem* get in on the groundfloor now...

 

[lowfreq33]

One of my college professors was at one time chief legal council for ASCAP.

The venue holds 100% responsibility for the ASCAP/BMI licensing. If any of you are feeling sorry for the venue owners, bear in mind that the license is usually under $500 annually. Bars pay about 70 cents a bottle of domestic beer, then charge the customer between $2.75-$5.00 a beer. Then they pay the bands between $50-$100 a man, while charging a cover to boot. Can't afford a few hundred dollars a year?

 

[xgator4u]

in writing that you get paid in full if ASCAP shuts her down.

Yeah, make sure to C.Y.O.A.

If the venue owner {friend or not} is that flippant towards the ASCAP nazzis, then I would beware of that attitude being aimed at you, should they fine her/shut her down.

 

[jonathanhughes]

I know it only applies to copyrighted material, but all we do is covers.

It's not the fact that it has a copyright, but the fact that the artists whose songs you're covering are most likely ASCAP-associated artists. There are plenty of songs (although probably not any you'd be playing) that are protected under copyright but are not registered with ASCAP, BMI, or SECAM. If you were playing songs that fit into this category, ASCAP would have absolutely no power, or interest. They're ultimately only interested in collecting fees for the performance of music by their artists. Heck, you could play a set of music by BMI artists at a club that didn't pay it's ASCAP fee, and ASCAP wouldn't have any recourse. BMI on the other hand …

 

[RustyAxe]

Just say you are playing parodies of songs its supposed to be protected under freedom of speech.

No, it's an even bigger legal hassle! Those would be considered "derivative works" and require the copyright holder's explicit permission, not just typical licensing.

 

[the Arsonaut]

It's not the fact that it has a copyright, but the fact that the artists whose songs you're covering are most likely ASCAP-associated artists. There are plenty of songs (although probably not any you'd be playing) that are protected under copyright but are not registered with ASCAP, BMI, or SECAM. If you were playing songs that fit into this category, ASCAP would have absolutely no power, or interest. They're ultimately only interested in collecting fees for the performance of music by their artists. Heck, you could play a set of music by BMI artists at a club that didn't pay it's ASCAP fee, and ASCAP wouldn't have any recourse. BMI on the other hand …

Part of the problem is that some people are just reading their brochures...It's a very different world on the other side of the fence.

They don't care what songs are played, their rationale is...it MIGHT be played...so pay up.
"But we don't book cover bands" Payup
"But we have a 100% original material format" well, a guitarist might play the first 3 notes of 'smoke on the water' Payup
"we don't even have 'in house' music" some kid might bring speakers for his iphone.. Payup
"none of these artists you represent, have ever been performed here...ever" Payup

Those have been in actual conversations with PRO people.
SESAC wants to hit up venues retroactively (since before they were even in the USA)...
If I'm paying for the privilege to belong to such an organization, why is my only notice of annual rate increases only included with the bill. If this were another service, that's a red flag, and you are directed to find another service provider...except that the PROs are the only game in town, they make the rules.

And no offense LowFreq333...but unless you own, or manage a venue, you wouldn't post that. Don't act like a venue's only expense is PRO licensing, cheap beer, and...the boys in the band...