Trouble in Small Venueland
In the weird world of music, this subject is so complicated, so odd, so poorly handled, so unfair, that I have started writing a Whither Zither about it many times and have thrown up my hands in frustration. But this past Saturday (9/ 22/07) Madison's Capital Times featured a big article on it, and I felt It was time for me to cough up my two cents.
BMI, ASCAP, and SESAC are this country's Performing Rights Organizations (PROs). The definition a PRO usually reads something like this: "A performing rights organization's function is collecting performing rights royalties on behalf of its members, composers and music publishers. The PRO then distributes these royalties to its members, minus the PRO's administration costs." Sounds very simple and straightforward, but believe me, it is a complicated and hazy mess.
Saturday's fine article by Katie Dean was given the somewhat misleading title of "Copyright blues: Venues not singing happy tune over fee to songwriters." But as the article goes on to say, "It's not the idea of supporting musicians that frustrates businesses... It's the... frustration with the strong-arm tactics and legal threats the national copyright organizations use to 'educate' local establishments."
From the standpoint of relatively insignificant songwriters like yours truly, another problem is that though tiny coffeehouses are paying thousands of dollars per year to these PROs, it is extremely rare that any of the songwriters who perform these wee gigs ever see one penny of that money because of the lopsided and convoluted PRO sampling systems. Meanwhile, I personally know of venues which have either gone out of business or stopped having any music at all because of these expenses.
It is impossible in the space of this Whither Zither to explain even the most basic workings of ASCAP and BMI. (I should disclose that Lou and I are in the process of switching our own music from BMI to the smallest of the three, SESAC, which I know much less about but have heard is more fair, though I can't say this with any authority). I URGE anyone interested in the subject to read a wonderful overview written by the fabulous musician Harvey Reid. It's called "ASCAP & BMI -- Protectors of Artists or Shadowy Thieves?" and is available on his website at:
www.woodpecker.com/writing/essays/royalty-politics.html
My first brush with ASCAP happened in 1991, around the time a few articles in the Capital Times by Kevin Lynch appeared asking much the same troubling questions as the article by Katie Dean. To make a long and complicated story short, about ten years before that, ASCAP had come into the Club de Wash, where my musical partner and I had played weekly since 1977, demanding $80,000 from the owner, Rodney Scheel, for the privilege of having us perform. Information was much harder to come by in those pre-internet days, but I had found that the charter under which ASCAP operates lets them have only "non-exclusive" contracts. In other words, if I, as a songwriter, wanted to make my own private contract with the Club de Wash for my songs, I had the legal right, and PROs could not charge fees for the performance of those songs.
I told Rodney this, and he told ASCAP this, and they essentially brushed this aside ("That doesn't matter") and continued to harass him. In Kevin Lynch's 1991 articles, he interviewed me briefly about this. Soon after his article appeared, three weird things happened.
First, I received a phone call from Mark Moss, my pal and the editor of the national folk music magazine Sing Out, based in Bethlehem PA, asking me what in the world I was doing out here. He had just received a call from ASCAP asking who this Wisconsin troublemaker Peter Berryman was. I have to admit I'm pretty easily freaked out, but this really did the trick. What was ASCAP doing calling up music magazines for background checks on me?
Second, the then president of ASCAP, Morton Gould, wrote a guest article in the Capital Times (April 17, 1991) essentially accusing me of not telling the truth, because there was another bar in the same building that played music videos with ASCAP music! For one thing, this bar wasn't in existence when ASCAP asked for its $80,000, and for another thing, Gould neglected to say that the point I made was right, and that they couldn't legally collect if I had my own private contract with the Club de Wash!
Third, and most peculiar, at about this time we received calls from a few Madison venues including the Club de Wash and the Capital Brewery Beer Garden in Middleton, saying that ASCAP had informed them they NO LONGER HAD TO PAY on the nights Lou and I played; that their rates would be prorated to reflect this. So publicly, they were implying I was wrong, but in reality, they were capitulating, because they knew my position was legally correct.
I notice that now, on their web sites, BMI and ASCAP do admit that yes, their contracts are non-exclusive. But they hasten to point out that in this private-contract situation if even ONE song not contractually covered is played, the venue can be fined thousands of dollars. There isn't a way to license on a per-song or per-gig basis, they say, even though they did, in a roundabout way, offer such a deal to our venues back in 1991.
Anyway, you can tell by quotes from ASCAP and BMI that either they have no understanding of music on our level, or they choose to misrepresent the truths of the situation. Payments to songwriters are based on radio play of the largest radio stations and biggest-grossing tours in the country. In the recent Capital Times article, Vincent Candilora, senior vice president of licensing at ASCAP, is quoted as saying, "For the most part, what you hear when you go out is what is on radio and what is popular." Anyone who follows coffeehouse singer-songwriters and folk musicians knows this is not true at ALL on our level. BMI says on its website FAQ: "More than 85% percent of all the fees paid to BMI go to the people who create the music you play, enabling them to continue writing more music for your business." Again, for the thousands of acoustic music venues in particular, this is astonishing bunk. One more from the BMI FAQ: "Approximately 50 to 75 percent of a songwriter's compensation is from performance royalties, an important part of which comes from commercial establishments." THAT is a HOWLER!!!
Well, here I am out of room. I have a marvelous
song by Steve Gillette on this whole issue which I'll reprint
here next month. He has a solution in mind that could possibly
help us all. Meanwhile I have to say that I'm in total agreement
with the basic concept of PROs. But they have to be more accountable
to someone; they have to be constructed more fairly; they have
to be overseen and regulated somehow. Clink, clink; there goes
my two cents.