1. If you play it, they want the money it seems. Check out what BMI has to say about it here -- in one paragraph:
Music Users | BMI.com
Also check out their licensing agreement to bars and restaurants. Minimum fee is $370, maximum is around $11,000 based on occupancy and frequency of nights music is played.
2. They try to get your set list or write down the songs you play. It's happened to me. Here is my experience locally, to answer your second question.
2011: I was hired by a Food Truck event organizer at a mall to perform live jazz and also 80's music with another band I was in. She told me the BMI folks called her and asked if she had paid the public performance royalties -- she asked if I knew anything about the law in this regard. I told her the law says the venue pays and she checked with the mall from whom she was renting or using parking space area for the Food truck event. That solved it as the mall had apparently paid the fee.
2011: We were performing regularly at a bar. The bar owner stopped having live music because he got a letter from the music rights management agency telling him to either pay the fee or stop having live music. We lost the gig because he didn't want to pay the fee.
2012: I approached a local brewing company about live music. They told us it had to be original music because they didn't want to pay the licensing fees. I told them we could play the chords of popular songs but simply improvise over the chords, as that would not violate artist's rights. They said they were uncomfortable with that and hired someone else.
2015: I partnered with an organization (non-profit) to put on a Health and Music Festival. We had live music for the full four hours and it was well-advertised on radio and social media and in certain print channels. The partner organization got a call from BMI asking if we had paid the licensing fee. They explained they were non-profit and none of the musicians were paid. So the music rights management company went away with no consequence.
2015: The president of the non-profit we partnered with on the Health and Music festival told me she and her husband used to get $150 dollars a night from BMI to go out to various places, write down the names of the songs the musicians were playing, and forward it to BMI so they could follow up with a letter to cease having live music or pay the fee.
2016: I approached a local restaurant owner about live music. He said he wanted to do it, but was afraid of getting hit by the music rights management agency. The fee was too high for him so he refused to do it -- until I offered to write 3 hours of original music. We advertised it heavily, and sure enough, he got a phone call from BMI. The restaurant owner told them it was all original music, and it went away. But at one of our gigs, a man approached us and asked for our set list. We said we didn't have one, as we just called the tunes we were playing, and they were all original so he wouldn't have recognized them anyway. He left us alone.
2017: I approached a wine bar about having a jazz duo. They said they didn't want to do it because the fee they have to pay to have live music was too expensive. I told them about our original music but they were too afraid to do it.
So, the music rights management companies are alive in well in my town. I keep running into them. It's a shame really. Playing these songs live keeps the songs alive. The keep the genre alive, and the music rights management companies are all but destroying live music in this town.
Frankly, I need to get to a lawyer about what is involved in getting a license to print songs without copyright infringement or public performance licensing fees.
Even if we set the free license at 200 seats (if this is even possible), someone would need to enforce the public performance rights if people started playing the songs in venues that seat more than 200. Laws are only as good as your ability to enforce them.... Would this be BMI, and would they disagree with eating their lunch by licensing all these songs for free even in limited seating venues?
The other thing -- I wouldn't want to limit the songs I wrote to only small venues. I would want them to be played in crowds bigger than that. It's when its played at a stadium that seats thousands, or in a movie or something that I would actually care about it. That's why I think there's a case for giving up all the public performance rights, all the print royalties, and let the music percolate through the entire world like the Real Book did. Get fees for recordings and other non-performance, non-publishing sources. None of us are going to get our music out there otherwise....If it wasnt' for the Real Book, I never would have discovered Blue Bossa and a host of other tunes out there.
Anyway, until I see a lawyer this is partly speculation. But these are my experiences.
I hope that answers your question.
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