[Dixielandjazz] Re: Copyrights

Bigbuttbnd at aol.com Bigbuttbnd at aol.com
Fri Jan 28 08:18:59 PST 2005


I'll weigh in first. I'm NOT a copyright or music performance lawyer but I 
have a propensity for remembering some of this because twice in my music 
'career' I've had to deal with the ASCAP/BMI/SESAC issue extensively.

Yes. There are at least 3 organizations (maybe more) that separately collect 
royalties for their composers: ASCAP, BMI and SESAC. SESAC is the easist 
(can't remember what it stands for) but they tend to represent composers of 
religious (gospel, contemporary christian, hymns, etc.) music. In the bar business we 
would simply say, "We don't play any of your tunes in here... the customers 
get uncomfortable." That would generally send them packing because a bar is not 
a high percentage place to collect for their kind of music. 

ASCAP and BMI together represent just about any composer (and therefore any 
tune) that you can think of so they have the market sewed up. Both have 
separate fees. I seem to remember that ASCAP was considerably higher than BMI. I DO 
remember that ASCAP was harder to deal with - less flexible -   than BMI. We 
could pay a little and put off BMI some with sad stories of how bad we were 
doing but ASCAP was not moved by any of those strategies... pay up now or get 

I think our fee to ASCAP was about $400 a year for a blanket license. BMI was 
closer to $250 a year. This was between 1992 and 1996 and our nightclub sat 
about 200 people.

With regard to radio. My understanding is that ASCAP/BMI/SESAC (hereafter 
refered to as ASCAP) use a log system where each radio station keeps a daily log 
of the tunes it plays. ASCAP only samples SOME of the radio stations in a 
given market and then totals those on a national basis to determine exactly who 
should be paid and how much. For years the system has been flawed because there 
were o too many radio stations to keep track of. Maybe Hank Williams got 
played on lots of stations that were not sampled and Michael Jackson got played on 
lots of stations that were sampled... at the end of the quarter Michael 
Jackson might receive more money for airplay than he deserved because he represented 
10% of all songs played on sampled stations (and therefore, 10% of all songs 
played!)   Since Hank Williams didn't show up in the sample, his estate didn't 
get paid anything. Not very fair.

Television seems to be handled differently. I've read that TV handles the 
royalties on a case by case basis - PAY AS YOU GO. You play "Your Cheating Heart" 
on a TV show... Hank Williams' estate gets paid, and usually a much higher 
fee based on a much bigger audience. Merv Griffin wrote the "Thinking Song" for 
Jeopardy so he could get paid every time it was played. Paul Anka split his 
royalty for "The Tonight Show Theme" with Johnny Carson as an incentive for 
Carson to use the theme.

I have no idea what 'formula' ASCAP uses to determine who gets paid what for 
live performances. There is no way to keep track of every musicians' playlist 
at every venue in the country every hour and day of the year! So Michael 
Jackson is probably getting paid when we play a Jellyroll tune at a concert!

I'm all for composers being paid. But ASCAP needs to find a fairer way to 
determine what is being played and who should receive the money. Many musicians 
(including some on this list) feel that the 'gray area' in this blanket license 
crap is an open invitation for ASCAP to scrape a lot of money off the top... 
and who would ever know? The 'formula' is so nebulous.

I often hear musicians on this list relate stories about ASCAP coming after 
them for fees, which surprises me. ASCAP's real leverage (other than 
knuckle-busting in a back alley) is through the courts, which consistantly rule in their 
favor. In that scenario the collector is following the 'money trail', looking 
for an entity that has assets, like a venue. Most musicians don't have the 
kind of assets that look attractive to a lawyer trying to collect big money in a 
lawsuit. I've never heard of ASCAP going after the performers in a legal 
action... rather the venue owners.

Well... that's all I know and it ain't much...
~Rocky Ball
Atlanta, GA

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