That is correct. And given the pittance that bands earn from the typical club gig is is pretty easy to show every penny as "Expenses".
(Don't forget it will take about 10 years of club gigs to pay-off the equipment).
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Responsibility for license?
- Thread starter Dominic D
- Start date
That is correct. And given the pittance that bands earn from the typical club gig is is pretty easy to show every penny as "Expenses".
(Don't forget it will take about 10 years of club gigs to pay-off the equipment).
Just found this on the BMI website:
"Q: If Musicians Are Playing Live Music, Aren't They Responsible For
Public Performance Fees?
Since it's the business or organization that's benefiting from the
performance of music, management is responsible for ensuring that the
organization is properly licensed. This responsibility cannot be
passed on to anyone else even if the musicians hired are independent
contractors."
That seems to be even more clear. We cannot be held responsible for the licensing.
"Q: If Musicians Are Playing Live Music, Aren't They Responsible For
Public Performance Fees?
Since it's the business or organization that's benefiting from the
performance of music, management is responsible for ensuring that the
organization is properly licensed. This responsibility cannot be
passed on to anyone else even if the musicians hired are independent
contractors."
That seems to be even more clear. We cannot be held responsible for the licensing.
It's entirely possible they are using a form contract and don't even realize the meaning of what the contract says. I have run into this problem recently both in the gig world and in renting a house. There are lots of standard forms out there and who knows who drew this contract up for the event.
Honestly if you are close with the event organizers a friendly phone call or email might just clear this up as a misunderstanding. If it doesn't, or you're unsatisfied with the result, then it's definitely time to talk to a lawyer.
The vast majority of venues that play copyrighted music take it upon themselves to own a BMI/ASCAP license to play that music legally in their establishment or event, and the reason is simple:
It would be terribly irresponsible and risky to trust the entertainers to own a license and open your business up to the possibility of a costly law suit if one of them does not.
I would therefore guess that the vast majority of bands out there who perform covers do NOT own a BMI/ASCAP performance license.
The OP's case is unusual. The organizer of the event should obtain the license to eliminate the possibility of being sued and include that fee in their expense tally as they plan the event. It's the cost of doing business, like buying hot dog buns and beer or renting the P.A. But the way they are going about it is kind of underhanded and assuming, so I would have a lot of questions and concerns about working with this event planner. I know OP said he and the band trust this woman, but it's worth opening a dialog with her.
It would be terribly irresponsible and risky to trust the entertainers to own a license and open your business up to the possibility of a costly law suit if one of them does not.
I would therefore guess that the vast majority of bands out there who perform covers do NOT own a BMI/ASCAP performance license.
The OP's case is unusual. The organizer of the event should obtain the license to eliminate the possibility of being sued and include that fee in their expense tally as they plan the event. It's the cost of doing business, like buying hot dog buns and beer or renting the P.A. But the way they are going about it is kind of underhanded and assuming, so I would have a lot of questions and concerns about working with this event planner. I know OP said he and the band trust this woman, but it's worth opening a dialog with her.
If you profit from the playing of copyrighted music, and you were not licensed to do so, you could very well be considered liable.
BMI/ASCAP would most likely sue the promoter, since their probably not inclined to bite the hand that feeds them. The promoter would likely then sue the band for violating the indemnity clause of the contract.
If the OP signs this contract as is, he is exposing himself to significant legal risk. Only someone completely ignorant of the law would sign this assuming it is of no consequence.
If the OP signs this contract as is, he is exposing himself to significant legal risk. Only someone completely ignorant of the law would sign this assuming it is of no consequence.
Yeah, kinda like I was saying.
Look, ASCAP/BMI is NOT going to go after a musician or band. That would be against their
stated guidelines! Their own guidelines call for charging the license to venues and organizers. They can't hardly then go after those they said in THEIR guidelines ARE NOT RESPONSIBLE.Let's apply a little common sense here guys. ASCAP is the law here. No one else is going to even think about this issue. You think the cops are going to investigate this? The FBI maybe??
If ASCAP says you're good, you're good.Okay, yes there may be a violation of copyright law here... by the organizers, not OP. ASCAP are the ones enforcing that, and they say musicians are okay! Sheesh people.
Okay, ASCAP sued the Girl Scouts... the organization! They did NOT sue the girls who were singing!!
See the difference?
I would sign this in a heartbeat and do the gig with no worries. No need to cross your fingers, YOU'RE NOT DOING ANYTHING WRONG!
ChrisB2 said:Yeah, kinda like I was saying.
Look, ASCAP/BMI is NOT going to go after a musician or band. That would be against their
Let's apply a little common sense here guys. ASCAP is the law here. No one else is going to even think about this issue. You think the cops are going to investigate this? The FBI maybe??
Okay, yes there may be a violation of copyright law here... by the organizers, not OP. ASCAP are the ones enforcing that, and they say musicians are okay! Sheesh people.
Okay, ASCAP sued the Girl Scouts... the organization! They did NOT sue the girls who were singing!!
See the difference?
I would sign this in a heartbeat and do the gig with no worries. No need to cross your fingers, YOU'RE NOT DOING ANYTHING WRONG!
That's great. What then prevents the promoter from suing the band for violation of the indemnity clause????
This is the catch right here. I did a little digging on the exact meaning of indemnity:
So by the contract if the promoter is brought to task to pay the fee by a licensing agency he/she could attempt to recoup those losses from the band. Whether they would win or not is up in the air, but it could cost money to fight.
Imo it would be unlikely that the promoter would win since the contract is designed to skirt the law, but sometimes odd things happen.
I think the organizer is trying to weasel out of paying a PRO license by pawning off the responsibility onto the performers. Whether it works or not, it could cause a discomfort should a PRO go after the organizer (who then goes after the band).
He didn't violate any clause. The clause says only that he knows the law and agrees to abide by the law.
OP already demonstrated he knows the law, and he is complying with it since he can't break it. Therefore he is abiding by the clause.
A cover band would be required to obtain a license only if the band organizes an event where they and/or other artists perform copyrighted material. That's not the case here.
If the clause said he agrees to obtain a license, I would not sign the contract. But it doesn't say that.
Man, I want to believe you, but every time I read over the intellectual property statutes I keep getting stuck on this part:
"The right to perform or play a song in public is one of the exclusive rights of the copyright holder."
Now, anyone who wants to hold the snake and believe you won't get bit, that's your business.
But BMI/ASCAP is the snake that often bites the hand that feeds it, and knowing how broadly that clause can be applied, I would not take a chance on an organization that will sue a soccer mom for tens of thousands of dollars for something her idiot teenage daughter did on the internet.
What that clause says in layman's terms is that if BMI/ASCAP decides to sue the promoters that the band agrees to pay for whatever it costs the promoters to settle the matter, including lawyers fees.
Where does the contract say the organizers are not going to and/or haven't obtained the proper license?
And if a problem arises, how can the organizers sue OP without also admitting their own negligence and liability?
This is a no-brainer guys...
And if a problem arises, how can the organizers sue OP without also admitting their own negligence and liability?
This is a no-brainer guys...
ChrisB2 said:
You continue to contort actual law with ASCAPs selective enforcement. Your inexperience with legal-ease is leading you to believe that the lack of directness in the language changes the meaning.
I gotta agree with guy on this one. The Festival Promoters are liable for the licence just like a bar would be. The Band (independent contractor) is protected under said license. But the license must in fact be in place. Besides the band is not an individual but an entity such as an Inc. or Corp. (but the whole tax thing is for another thread)
Don't sign it until that clause modified.
It seems implicit to me, why else would they be trying to get the band to agree to pay for their expenditures if the organizers get get sued over playing copyrighted material.
That's just it, they would be pressed into admitting that, but if the band agrees to pay for their expenses incurred due to any legal action brought against them it could get costly.
No it isn't. There is no way I'd sign that contract.
When I read that clause this is what is says to me:
The organizers aren't going to get any kind of license and are expecting the bands to play only original material. The band by signing the contract would be agreeing to that clause. The rest of the clause states that if they violate that and play copyrighted material that they agree to cover any expenditures incurred by the event organizers, or anyone else associated with the event associated with a copyright infringement suit, including lawyer fees.
It could be a little more straightforward imo, but it's a contract and legalese is what it is, and I think they make it confusing for a reason.
