Copyright and the BMI gestapo

[Robyn]

Okay, here we are, a little pissant irish band, playing traditional (public domain) irish music (as well as some originals), and we are being harassed by BMI's goons, claiming that we are playing songs that are copyrighted.  The tiny bar/restaurant where we play is not licensed for music, which is fine as long as we are playing songs not affected by copyright laws.  When I called BMI to find out what the issue is, well it turns out that it's the arrangement that's copyrighted, and they claim that we are playing copyrighted arrangements.  This is quite untrue, as we are playing our own arrangements of traditional (ie, public domain) songs.  We now know that a guy who came to a few shows during the summer was one of BMI's agents/spies/what-have-you, b/c he was asking us questions about the songs and had some gadget/app that, when we played a song, would tell him what the song title was.  He was very friendly but didn't come out and say why he was there.  I would have had a lot more respect for him if he'd been straightforward, instead of spying.

Next step for us:  make our own sheet music w/ our own arrangements, and copyright that, and write a letter to BMI listing our setlist and stating that we are indeed playing our own arrangements.

Has anyone else had to deal with this, or have any advice to make sure we are covering all the bases?  Don't get me wrong--I understand the purpose of copyrights, and agree that an artist should receive royalties when their song/arrangement is played.  But this (our situation), to me, is simply bullying on the part of BMI.

robyn

[Chip Donaho]

Hey, we're just a bunch of people having a jam between friends. I have no clue who wrote what.
Who is BMI? Never heard of them....  ;)  Over the years I've had people tell me similar things. Buy me a drink and we'll talk about it.  :D

[Robyn]

Broadcast Music, Inc.

http://www.bmi.com/]http://www.bmi.com/

[Chip Donaho]

Thanks, "I knew that"....  ;D

[Todd Norris]

How bizarre.  I've not heard of such a thing.  Arrangements?  On public domain songs?  Wow.   

[Tim van de Ven]

If you want to avoid this "hassle" then play in places that are ASCAP/BMI approved.

I have zero sympathy for clubs that do not pay their licensing fees to the PRO of their country. I have worked on both sides of this "argument"; both as a songwriter (which I still am) and as a club booker. I was responsible for getting the club their SOCAN (our Canadian version of ASCAP/BMI/SEESAC) license.

And I am a BMI member (as well as SOCAN) as they assist in the collection of my royalties.

[Bart Elliott]

How bizarre.  I've not heard of such a thing.  Arrangements?  On public domain songs?  Wow.   

Yep, arrangements. Arrangers have to be paid too, and if you are using an arrangement to a public domain composition, all the more reason for the PROs to step in.

We've discussed this in the past ... while I don't agree the bully approach, I don't want BMI or ASCAP to stop enforcing and reporting.

[Chris Whitten]

The PRO licenses are very cheap actually.
If a venue isn't licensed for music, I'm afraid music probably shouldn't be performed.

If it ain't licensed to sell food, food shouldn't be sold.

The venue is a business and there are rules when running a business.

[Robyn]

To clarify--this is a small restaurant, and we are the only band to play there.  There's no stage, we just set up in a corner.  The licensing fee would be probably $1000/year, which doesn't seem like much, but at this point we aren't bringing in enough money for the place to justify a license--there are no tickets sold, etc. 

Anyway, I do understand the points made.  I was just hoping that someone might have suggestions for dealing w/ this other than "play somewhere else."

Thanks, Robyn

[KevinD]

The N.Y. Times had an article a few months ago profiling some of the field agents from BMI, they do pretty much what the field rep did in your story. Bottom line was that the state of the economy, in addition to revenues lost due to illegal sharing and things of that nature, the performing rights organizations are digging deeper to secure streams of revenue which may not have been fully exploited in the past. Going after venues that offer live music, including mom & pop type restaurants that are not necessarily seen as "music venues" is one way. (Which sounds like the type of place you are playing.)

I came across this on the web, it sounds like this person was in a situation similar to yours, he wasn't satisfied with the initial answers he received so he pursued the matter (successfully it seems).

http://www.woodpecker.com/writing/essays/phillips.html]http://www.woodpecker.com/writing/essays/phillips.html

From what I gathered in the Times article there was some room for negotiation by the venue owner in terms of the fee, but it also mentions that once negotiations break down (usually by an owner's refusal to talk to the reps) that BMI (and presumably ASCAP) has never lost a lawsuit.

[Bart Elliott]

Great article Kevin, thanks for sharing!

[Chris Whitten]

The licensing fee would be probably $1000/year, which doesn't seem like much, but at this point we aren't bringing in enough money for the place to justify a license--there are no tickets sold, etc. 

Probably?
It would be interesting to know.
Hard for me to calculate online without being a business promoting music myself.
In Australia and the UK a fee is calculated based on the income made from the music. If no tickets are sold (as in your restaurant) they ask the restauranteur to contact the PRO and negotiate a fee. But if tickets are sold and income comes directly from music, there's a live music fee of 3% in the UK, and '2.2% of gross expenditure on live-artist performers plus 1.65% of gross admission receipts' in Australia.
Very unscientific of me I admit, but we are talking about PRO's extracting 3% to 4% from licensees per year for music licensing.
Unfair?
The use of 'Gestapo' in the title certainly sends the discussion in an unfortunate direction.

[David Crigger]

Okay, here we are, a little pissant irish band, playing traditional (public domain) irish music (as well as some originals), and we are being harassed by BMI's goons, claiming that we are playing songs that are copyrighted.  The tiny bar/restaurant where we play is not licensed for music, which is fine as long as we are playing songs not affected by copyright laws.  When I called BMI to find out what the issue is, well it turns out that it's the arrangement that's copyrighted, and they claim that we are playing copyrighted arrangements.

If that's true - then you might have a very good argument. It is not uncommon for arrangers working on shows and productions making use of a public domain folk tune or two to slap an "arrangement" together that is merely the public domain lead sheet with their name on it - maybe transposed to the appropriate key. Instant "arrangement". With the intent of this shadowy grey area practice being to enable be listed on that show's BMI/ASCAP performance sheet, in order to get paid as the show tours. All fine in good as the only show that lists say "Mary Had A Little Lamb, Arr. by D, Crigger" would be the actual show in question.

But this kind of casual assignment of rights should in no way change the actual public domain status of the original work. And IMO ASCAP/BMI is wrong and acting beyond their legal scope if pursuing compensation for these types of arrangements is what's happening. And with Irish Folk song arrangements it would be a tempting line to cross for them - especially in these lean times.

Another example - published collections of public domain tunes. From a BMI-ASCAP standpoint, again the copyright of the physical layout of the published arrangement has no bearing on the public domain status of the original works.

And to be clear here - I'm on BMI/ASCAP side on most arguments like this. I'm an ASCAP writer and totally believe that any business utilizing commercial music in ANY manner to promote or accessorize their business should be paying their PRO fees.

But I also believe that the bargain at the heart of copyright's and its physical sibling, patent's  origin was this - we, as society will protect the writer's stake or ownership in a creative work, to exclusively exploit and benefit from for a reasonable period of time, and in payment for that protection, said writer agrees at the conclusion of the protected period to "sign over" said work to society at large to use for the benefit of all.

So IMO once something is in the public domain, it should stay there - and any claims made by supplemental works using public domain works as a basis (arrangements) should be examined very carefully as to their merit - before demanding royalties of others merely exploiting the same public domain works in a similar fashion. In other words, the first publisher that puts out a Mozart sonata should have little to no claim to the Sonata itself as subsequent publish release similar versions

It does seem like BMI is over reaching here.  But....

Next step for us:  make our own sheet music w/ our own arrangements, and copyright that, and write a letter to BMI listing our setlist and stating that we are indeed playing our own arrangements.

I don't think this is ultimately your fight... you can help and be involved in helping, but.... if I'm not mistaken this is really between BMI and the restaurant owner, unless you are positioning yourself as the producer/promoter of a musical event hiring the restaurant as a rented venue - which still probably won't keep the restaurant owner out of it.

And honestly, some of the other guys are right, a restaurant presenting live music without paying PRO fees is in a sense enjoying an unfair advantage - all the benefits of live entertainment with less of the costs. Giving him the chance to profit ahead of his competitor that plays by the rules - and hires live music AND pays the fees.

I've known many a small restaurant/coffee house to try this public domain thing - and ultimately it inevitably blows up on them. Somebody invariable plays Happy Birthday or a lick from "Smoke On The Water" from the stage with a rep there and "oops - big trouble".

Anyway best of luck with it - I hope it works out OK for you.

David

Has anyone else had to deal with this, or have any advice to make sure we are covering all the bases?  Don't get me wrong--I understand the purpose of copyrights, and agree that an artist should receive royalties when their song/arrangement is played.  But this (our situation), to me, is simply bullying on the part of BMI.

robyn

[Robyn]

Thanks again, all.  Kevin D, thanks for the article link--I bookmarked and will read it when life quiets down.  I've read another woodpecker article that discussed similar issues re: copyright.

Chris, okay, the fee for this place per year, per BMI's fee schedule, would be $4.05 per occupant per year.  I'm not sure what their max occupancy is--I'm going to guess 2-300.  So that works out to around $850-1200 per year fee.  And I think "gestapo" is quite appropriate, considering the sneakiness of this agent or whatever he's called, and how much BMI has been hassling the restaurant owner.  I would have been more compliant and had far more respect for the BMI rep had he come out and told us who he was and what his concerns were, and maybe suggested how we could comply or make changes.  But that doesn't make money for BMI.

We have all done a lot of thinking and research about this.  Some of the songs we do are originals and a couple bandmembers want to write more originals.  We have checked the songs that we will be playing, to make sure that they are indeed public domain.  For all of the songs, we have indeed used the original PD melody and done our own arrangements, often w/ our own chording.  And, we are to the point that we are more comfortable w/ the idea of playing elsewhere anyway.  So we are getting through this--it's just been a headache, altho a good learning experience.

Robyn

[Tim van de Ven]

Thanks again, all.  Kevin D, thanks for the article link--I bookmarked and will read it when life quiets down.  I've read another woodpecker article that discussed similar issues re: copyright.

Chris, okay, the fee for this place per year, per BMI's fee schedule, would be $4.05 per occupant per year.  I'm not sure what their max occupancy is--I'm going to guess 2-300.  So that works out to around $850-1200 per year fee.  And I think "gestapo" is quite appropriate, considering the sneakiness of this agent or whatever he's called, and how much BMI has been hassling the restaurant owner.  I would have been more compliant and had far more respect for the BMI rep had he come out and told us who he was and what his concerns were, and maybe suggested how we could comply or make changes.  But that doesn't make money for BMI.

We have all done a lot of thinking and research about this.  Some of the songs we do are originals and a couple bandmembers want to write more originals.  We have checked the songs that we will be playing, to make sure that they are indeed public domain.  For all of the songs, we have indeed used the original PD melody and done our own arrangements, often w/ our own chording.  And, we are to the point that we are more comfortable w/ the idea of playing elsewhere anyway.  So we are getting through this--it's just been a headache, altho a good learning experience.

Robyn

For BMI to have sent a rep to the establishment it would mean that musicians have complained to them.

The owner was playing or featuring live music without recompense for the creators of the material being used. You may disagree with BMI's "tactics" but I disagree with people somehow believing that music, even live music, is free.

Equating an organisation trying to get their fair share (BMI in this case) with the Gestapo is ludicrously inappropriate. The club owner has violated copyright laws; BMI is there to ensure that they are enforced and remunerated.

Your thread has invoked Godwin's Law from the title alone:

Godwin's law does not claim to articulate a fallacy; it is instead framed as a memetic tool to reduce the incidence of inappropriate hyperbolic comparisons. "Although deliberately framed as if it were a law of nature or of mathematics, its purpose has always been rhetorical and pedagogical: I wanted folks who glibly compared someone else to Hitler or to Nazis to think a bit harder about the Holocaust," Godwin has written.

[Todd Norris]

Fascinating thread.  Very educational for me too.  I just read some of the BMI website and I'm curious how royalties are paid from performances in small venues.  Do they have to submit set lists like the big venues and tours?  Or are their fees just added to the pot and the royalties are paid from the big venues, TV, Radio etc.? 

[Robyn]

My apologies if I offended anyone w/ the gestapo comment.  Offending anyone was not my intent.

Robyn

[Chip Donaho]

Fascinating thread. 

Yes it is, many of us have experienced such things. I happen to enjoy such discussions.  ;)

[Bob Pettit]

In my opinion, the discription of 'goon' is better than 'gestapo' for this situation, as it has more of a mob type feel to it than Nazi. 

Come on, how do you justify collecting royalties for a song whose author is listed as 'traditional'? The game is rigged and the people who are being hurt are the young start up businesses that might, if the goons would stay off them, provide a place for musicians to play.

...

[Tim van de Ven]

In my opinion, the discription of 'goon' is better than 'gestapo' for this situation, as it has more of a mob type feel to it than Nazi. 

Come on, how do you justify collecting royalties for a song whose author is listed as 'traditional'? The game is rigged and the people who are being hurt are the young start up businesses that might, if the goons would stay off them, provide a place for musicians to play.

...

So you believe that a "start-up" should get a free pass and not pay any fees to BMI/ASCAP while the other venues nearby are paying these fees? Perhaps you could extend this generosity to allow them to sell liquor without a permit, serve food without health inspections, and collect money from patrons without paying local, state or federal taxes.

That doesn't sound fair to me at all; you're penalizing other business owners that abide by the rules and giving an unfair advantage to those that don't want to pay for their BMI/ASCAP licenses.