The Jefferson Agrarian

95 responses so far ↓

• 1 Dave // Jun 25, 2008 at 6:01 pm

  These organizations are thugs to be sure.

• 2 Herr Claus // Jun 25, 2008 at 8:06 pm

  This is, unfortunately, becoming more and more common. The music industry, oblivious to the fact that they have a future very similar to dinosaurs or any other large slow moving reptile, have decided to supplement their incomes by blackmailing their best customers with lawsuits.

  Burn down the burger stand. Here’s a site where you can find just about any music you want, including anything from BMI: http://www.Google.com.

• 3 Jerry Bailey // Jun 26, 2008 at 9:06 am

  BMI gathers and distributes public performance royalties for songwriters and publishers, not recording artists (unless they write the songs). BMI operates on a non-profit basis, representing about 375,000 copyright owners. About 88 cents of every dollar collected is paid out to the songwriters and publishers. The royalties for these songwriters has grown steadily over the last decade (and the last century), so you would be incorrect to state that all facets of the music industry can be lumped into the “dinosaur” category. The collection of public performance royalties for songwriters and composers began in the early part of the last century, so this is nothing new, and it won’t go away anytime soon. This is how songwriters earn a living. There will always be some people who are ignorant of the law, but education eventually catches up with most of them.

• 4 Queen // Jun 26, 2008 at 11:16 am

  BMI & ASCAP henchmen are ridiculously notorious for strong arming small businesses and using mafia scare tactics to try to squeeze them for cash. A friend who owned a hair salon in a little fishing village in Alaska was once approached by BMI, trying to scare her into paying BMI/ASCAP just for the ability to turn on her radio during the day. That doesn’t do the songwriters any favors. It only scares people into living their lives without music. As more small, struggling venues are scared away from hiring bands to play, songwriter’s songs will simply not be heard by potential album buying audiences, and everyone loses out. Nobody makes any money, and nobody’s lives are enriched by music. Where’s the fun in that?

• 5 Jerry Bailey // Jun 26, 2008 at 1:05 pm

  Dear Queen:

  A music license would not be required of a hair salon playing the radio. For the last ten years, such play would be an exemption under the law. Furthermore, the suggestion that BMI would send a licensing rep into a hair salon in Alaska is silly. I know. And BMI doesn’t speak for ASCAP or vice-versa. Songwriters make very little money from the sale of albums. Most of their income is from royalties earned from public performances by businesses using music. So the argument that songwriters are substantially helped by venues playing their music illegally holds almost no merit. If venues obey the law, they have absolutely noting to fear from these organizations.

• 6 The Queen // Jun 26, 2008 at 1:51 pm

  I believe the incident did occur more than 10 years ago, but I’m not making it up. In fact, 2 years ago here in the State of Jefferson a representative of BMI or ASCAP (you all look alike to me, sorry…) scared the owner of a very small dress boutique into paying music licensing fees to listen to her radio. So either the practice of threatening small businesses with litigation continues, or someone is out there tarnishing your good name, scamming small business using scare tactics ya’all invented.
  Jerry, rather than to continue bitching about the past, do you have any suggestions that can give any of these small venue owners and the bands who won’t be able to get a playdate a ray of hope for the future?

• 7 Herr Claus // Jun 26, 2008 at 9:43 pm

  Jerry,

  I stand by my “dinosaur” comment 100%.

  The fact is that you, sir, are a middleman (or at least working for one). And while your organization may have had some relevance decades ago, it currently does nothing but stand in the way of efficient communication. As a creator of intellectual property myself, I know that there is absolutely no need for your organization. Artists are perfectly capable of handling their copyright licensing on their own…look at any successful photographer, illustrator, or designer for proof of this.

  The fact that royalties for songwriters has grown over the last decade doesn’t impress me. So has inflation. Provide some solid numbers next time instead of rhetoric.

  And in regards to your comment that there will “always be some people who are ignorant of the law, but education eventually catches up with most of them,” I have to agree with you. As the public becomes more and more educated, they will realize that your licensing scheme is unreasonable and that a band playing an attributed song cover in a small venue does not hurt any songwriter…rather, it increases their public exposure, and therefore, their value in the marketplace. When an appropriate licensing situation comes about (for example, a nationally released album rather than a concert on Granny’s back patio), the songwriter will be in a better position because of this exposure.

  You argue that “this is nothing new, and it won’t go away anytime soon.” Someone’s living in the past…reminds me of dinosaurs. Your business model needs to evolve with the times. I don’t care that it worked for you in 1956. Does it work today?

• 8 Jerry Bailey // Jun 27, 2008 at 9:39 am

  Dear Herr –

  Yes, BMI’s business model works very well today. Revenues distributed to songwriters and publishers were up 8% last fiscal year, for a total distribution of $732 million. BMI has maintained this grown rate consistently over the last decade, which is well ahead of inflation. Much of this growth can be attributed to increased use of music on TV, including cable, as well as international sources, which amount to 27% of revenue. Restaurants, bars and clubs amount to only about 3% of BMI revenue. Expenses were down to about 12%, an all-time low. All revenue after expenses is distributed to songwriters and publishers. While it might be true that some songwriters who don’t want to share in this distribution have no need of BMI, it doesn’t make much sense for a successful songwriter to walk away from such an opportunity to earn a living, and most of them don’t. If you don’t write commercially successful music, however, joining a performing right organization will provide little or no financial benefit. Individual public performances may pay only a few cents or less in performance royalties, so a songwriter usually needs a lot of performances, such as on radio, to make significant income.

  BMI doesn’t threaten business owners. Some of them who break the law do get sued, and BMI notifies them when litigation is being considered. It’s always a last resort, but sometimes it’s necessary. Most of BMI’s licensing efforts are done by mail or telephone to keep expenses low; it’s rare that a licensing representative goes into a business, and even then, the business owner is usually notified in advance. When a researcher is verifying music use, however, the visits are done quietly without notification, and rarely does anyone know the researcher is in the establishment.

  As far as providing advice to help business owners, I encourage them to read the brochure from the Better Business Bureau at http://www.bbb.org/musicinthemarketplace and to consult with an attorney when in doubt about their use of copyrighted music. Many business owners simply don’t know who owns the copyrights played in their establishments, and it’s risky to take the word of others who have no expertise in the matter.

• 9 Queen // Jun 27, 2008 at 11:36 am

  I think BMI’s business model works well for BMI. It covers your expenses, whatever they might be, and just as you said, provides only a few pennies or less to the song writer. Who is NOT served by BMI’s business model? Just as Herr Claus said, it’s the independent small business owner, who is already struggling with today’s economy, and really doesn’t have the time nor the desire to deal with the threat of litigation.

• 10 Dave // Jun 27, 2008 at 12:17 pm

  Just because people disagree with the concept and the law itself doesn’t make them ignorant of it – it just makes them in disagreement with it. Herr Clause is right, the musicians don’t need this representation and it probably hurts them more than it helps.

  I don’t know of any painters’ henchmen, errr union, which demands royalties of a business owner who hangs paintings in his business to create ambience. Why then, do business owner’s have to pay a musicians’ union for the “privelege” of playing what they’ve already purchased. Someday, some small business owner is going to simply shoot a BMI/ASCAP rep – and all the small business owners across the country will silently applaud.

  My feeling is that once I’ve paid to purchase the output of any artist, that output is mine to do with as I choose. If someone then wants to strongarm me for more cash and has the backing of guns (law) to do so, I’ll simply stop buying that type of artistic output.

  Or maybe if I let my friend drive my car, I’ll have to pay a royalty to the automotive designer(artist).

  Legal plunder.

• 11 Herr Claus // Jun 27, 2008 at 6:34 pm

  My illustrious colleagues have handled the discussion with singular aplomb, so I don’t have much to add. However….

  Jerry, it makes a lot of sense for a songwriter to walk away from your business model. Have you heard of a band called Nine Inch Nails? They offer songs for download to be remixed by their fans (as well as free album downloads), and they are wildly successful…without BMI. While some artists that you represent (Metallica?) may enjoy having another layer of bureaucracy surrounding them in addition to their publisher and label, more and more artists are realizing that, as technology makes communication easier, your ilk is simply unnecessary.

  Let’s face it, Jerry. You are a paid industry spokesperson. I could call you a schill, but I’m being polite. The bottom line is that you’re the only person in this conversation who is being paid to voice their opinion. If BMI is such a good thing, why do they have to pay you to visit small-town news blogs and tell us how great they are? Sounds to me like they could cut your position, quit charging small venues as mentioned in the article, and probably break even.

• 12 admin // Jun 28, 2008 at 7:53 am

  Looks like we’re not alone:

  http://tinyurl.com/6xsold

• 13 Dave // Jun 28, 2008 at 11:08 am

  Yeah, proof BMI is really performing a valuable service for musicians.
  Small venues should organize and force the bands themselves to cover the thefts, I mean licensing fees. Of course, the bands couldn’t afford to do it, and so there’d be no live music. Make that stick for several months over the whole state of California and then watch the leaches squirm.

• 14 Jim Dyar // Jun 29, 2008 at 11:07 am

  This discussion is going around right now with every musician, club owner and music fan that I know and everyone is coming to the same conclusion: BMI and ASCAP are wrecking art scenes in the north state. Clubs that provide a venue for live music operate on a thin budget anyway and then these organizational reps come in and shoot for the highest fee imaginable, then negotiate down. They threaten club owners with even bigger fines if they don’t play along. Great service to an arts community, no? I know a lot of BMI registered writers and not a single one of them is aware of any “return” from fees of this kind. I’m assuming their are some writers at the top who benefit, but the vast majority of musicians get nothing from these organizations. The only thing we get is fewer and fewer clubs to play at because these reps KILL the live music scenes! I mean, give me a break. If some club I don’t know about is playing my songs without my knowledge, that’s a good thing for me because someone might discover my music. Most artists feel the same way.
  To be continued…

• 15 LarZ // Jun 29, 2008 at 1:23 pm

  Here is the US Copyright Office, Circular 92, Chapter 1, Subject Matter and Scope of Copyright, regarding Title 17:

  http://www.copyright.gov/title17/92chap1.html

  The section of interest is #110

  *****
  The following copy should have been posted on the section quoted above:

  “(B) communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if —

  (i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and —

  (I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or

  (II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;”

• 16 LarZ // Jun 29, 2008 at 1:55 pm

  Hey Jerry,

  Could you please provide the specific statutory and case law upon which you base you royalty demands for small businesses?

  Could you also provide a detailed description of the metrics you use to determine how much a given business is to pay? Not some marketing or PR mumbo-jumbo, but set forth the actual metrics used.

  Thanks.

• 17 The Queen // Jun 29, 2008 at 5:44 pm

  Also Jerry, as I understand it, radio stations have music licensing agreements with BMI & ASCAP. So when a BMI or ASCAP rep contacts the owner of an establishment, demanding payment for playing the radio, wouldn’t that be, in effect, double dipping?

• 18 Jerry Bailey // Jun 30, 2008 at 1:57 pm

  Dear LarZ –

  You can download a pdf of BMI’s license for eating & drinking establishments on their website at http://www.bmi.com/forms/licensing/gl/ede.pdf. Page 3 is the fee calculation based on how a business uses music and the fire code occupancy or square footage of the venue, all of which might fit the description of a metric. As for your question about statutory or case law, I’m no lawyer and I don’t want to attempt to address the specifics of law here. BMI has a brochure called “The Legal Aspects of Performing Copyrighted Music,” which was written by a copyright lawyer, and which lists case law in some detail. I know that the performing right organizations file hundreds of federal lawsuits each year, and I’ve never seen such a lawsuit they they lost. Apparently, federal courts don’t have much trouble making a decision on these issues. Historically speaking, the earliest case I recall reading about involving a songwriter and a restaurant was Herbert vs. Shanley, which went to the U.S. Supreme Court in 1917. The NY restaurant was presenting performances of certain songs at no cost to customers, and was not paying the composer. The restaurant argued that it shouldn’t have to pay composers, since the performances were free. Supreme Court Chief Justice Oliver Wendell Holmes ruled that all uses of copyrighted work, even those for which a specific fee was not charged, required compensation to the composers. I’m sure you can find it on the internet, if you want more detail. In the decades since, there have been thousands of similar lawsuits with similar decisions.

  Dear Queen –
  As I mentioned in an earlier post, since 1998 copyright law does not quire licensing for playing radio in eating & drinking establishments under 3,750 gross square feet, so long as there is no cover charge and the music is not put in the phones (music on hold), and other specifics. Laws in many other countries are different, where plaing radio usually does require licensing in the venue. The portion of Section 110 that LarZ posted above deals with this exemption when playing only radio or TV in certain establishments. I strongly encourage anyone with questions about copyright law to consult with a good attorney rather than trying to interpret it yourself.

  Dear Herr –
  Calling people names is foolishness, and I won’t participate. I began my career as a newspaper reporter covering the music business after college in 1972. For the last 35 years, I’ve worked in many parts of the music business. Nobody told me or asked me to respond to your posts. I’m doing this primarily because I’m passionate in my beliefs that people who write songs for a living deserve to be understood and compensated for their work — and I’ve been in this line of work long enough to recognize who has the facts and who’s blowing smoke.

  I’m honestly trying to help you understand these issues — and I’m well aware that you can take it or leave it. The concept of intellectual property is not easy for some people to grasp, but virtually every significant country in the world has such laws to proted the livelihood of creative people. You may not like such laws, but without them, you would not have the movies, TV and music you enjoy today. Some of you obviously think these laws are obsolete, but keep in mind that nearly a century ago, in this country, there were people arguing the same thing as you, and it didn’t fly then, either. If anything, lawmakers have given increased protection to creative people in recent years. Sure, the music business is changing, and it will continue to evolve with new technologies — but creative people will be paid one way or another for their contributions to lives.

• 19 LarZ // Jun 30, 2008 at 3:36 pm

  Thanks Jerry,

  I’m no lawyer, but your agreement looks like a ‘take it or leave it” contract of adhesion. The business owner cannot negotiate the terms. Right?

  I may have missed something, but it looks like a venue in Siskiyou County pays the same rate as a venue in New York City, if they have the same occupancy levels, and performance frequencies. Correct?

  Is there any consideration of local economics and variables such as traffic turnover, etc.?

  I would like to see the legal brochure you mentioned. Can you post a link to it?

  And perhaps you would be so kind as to have your legal department post a copy of one of the standard complaints they serve, citing the case law in support of your rights, etc. That certainly would answer many questions people have with respect to the legal sanction BMI has in this matter.

  I am surprised you do not have such a legal brief in support of BMI’s position its your website. That certainly would settle questions like those raised on this board much quicker. And since your legal department has successfully brought this matter to the Federal courts, as much as you claim, then that information could hardly be considered a trade secret, or the like.

  Also, how does BMI come up with the ‘fee metric’ per occupant? That is a pretty fundamental, and apparently, non-negotiable metric.

  And, are all songs basically the same in terms of cost? For instance, some songs are covered more than others. Some writers probably get more royalties than others. And a given business will probably play all sorts of music over a given year. And that list may very dramatically from one business to another. So, just how does BMI come up with the fee structure?

  And, do songwriters contract with BMI directly for each song, or do they work through their producers and/or publishers? And, is any division or unit of BMI one of the publishers for which you collect royalties?

  Thanks again!

• 20 Herr Claus // Jun 30, 2008 at 5:43 pm

  Jerry,

  Since you are quoted in many news sources as a BMI spokesperson, I am not surprised that nobody told you to respond to these posts. You’ve obviously been at your job long enough to know what to do without being told. My point is just that you are a paid spokesperson, and that your viewpoint and arguments are rather predictable as a result.

  I would be inclined to more courteous messages if my questions were being answered. Here’s a couple that you skipped over that I think are particularly relevant.

  1) How do you explain the success of the Nine Inch Nails business model? They offer free downloads of their music and encourage their fans to remix it. Unless I’m missing something, they have nothing to do with BMI and seem to be doing just fine.

  2) What makes the music industry so different from other creative industries that it requires organizations like yours?

  For your own reference, Jerry, I make my living as a designer, photographer, and filmmaker, so I am well aware of how copyright law and intellectual property works. However, the music industry has more red tape than anything except the movie industry. Meanwhile, there are many highly successful photographers making money without any kind of monolithic licensing organization. So yes, I agree that creative people deserve to be paid. I simply think that they are better off handling their transactions directly, and you have not yet provided an argument as to why that is not the case.

• 21 Jerry Bailey // Jul 1, 2008 at 8:55 am

  Dear LarZ –
  Because BMI and ASCAP represent public performance licensing for about 97% of all music performed in the U.S. , both organizations operate under consent decrees from the Department of Justice that specifies what they can and cannot do. BMI’s consent decree specifies that all businesses of the same class and category music be treated in like manner, which means BMI cannot negotiate favorable terms with one business owner and not offer the same terms to another similar business. That’s why BMI doesn’t negotiate the rates on their licenses. Most business owners would consider this fair, rather than having a hodgepodge of different rates among competing businesses. Using the occupancy metric provides a standard to vary the rate for different sized businesses which can be verified by a third party (local fire marshals). There is no provision for businesses in different parts of the country, probably because it would be difficult to accurately calculate the changing costs of living in various localities and factor that into the license fees.

  About the legal brief: As I mentioned, BMI has a brochure which addresses the legal issues, but it’s not on the web site. Although it is often mailed out on request, I think the reasoning is that the legal language might be too intimidating or harsh for most business owners. I could e-mail you a pdf, but you probably don’t want to give me your address. That’s up to you.
  Only about 10% of the lawsuits BMI files are mentioned in the press, but a sometimes the coverage can be found online. BMI doesn’t publicize lawsuits, but does respond to such inquiries. The details of case law which you seem to be requesting are just too complicated to list here, and, besides, I don’t want to give anyone the impression that I’m offering legal advice or attempting to displace an attorney.

  Royalty distributions to songwriters are pegged largely to radio and TV airplay, both domestically and in other countries. Most of the revenue comes from radio and TV, and it’s logical that writers who receive such play get higher payments. There are other businesses in which play is tracked and/or reported, such as electronic jukeboxes, web streaming, satellite radio, and major concert tours. Revenue from restaurants, bars and clubs is a tiny portion of BMI’s revenue stream, and payments are usually small to writers who receive no performances other than these venues. BMI is considering proposals to track playlists in some small venues, but even this would not substantially change their royalty payments. The reality is that performance royalties generally follow the dollar, and the real money is in radio and TV performances, and most songwriters aspire to achieve that level of success. BMI has a royalty information booklet online at http://www.bmi.com/career/entry/C1517, but the metric is not for the faint of heart. Distributing royaties accurately is a complex process when dealing with radio and TV.

  Songwriters may publish their own works, but the songwriters deal directly with BMI and are paid directly by BMI. There’s nobody in the middle on performance royalties. BMI does not own or publish music. Contracts with writers are non-exclusive; in other words, writers may directly license their works even if they’re affiliated with BMI. Doing so, however, may reduce the royalties they receive from BMI.

  And this brings us to one of Herr’s questions: Yes, songwriters can handle their own transactions directly, even if they’re signed with BMI. If you’re a writer who is being played on thousands of radio stations in the U.S. and around the world, do you really want to negotiate licensing deals with each station? Do you want to track your performances in Argentina and Denmark. Do you really want each radio and TV station to have to contact you directly before they can play your song? Prior to BMI, most Black, country and Hispanic writers could not belong to ASCAP, so radio stations simply didn’t play them. They couldn’t earn a living with their music. BMI changed all that. Most songwriters want to focus on writing more songs, rather than negotiating contracts. If you’re a business owner who plays dozens of songs every day, do you really want to track down every songwriter to get permission to play those songs? The primary reason performing right organzations exist around the world is to simplify the licensing process and reduce expenses for everybody. The reduce the red tape rather than increase it. If you want to license directly all of the music you play, then go for it! There is no legal reason you can’t do it. But try to figure out who owns the copyrights on even one dozen songs. I think you’ll find that even one song performance contract on a hit song will cost you more than an annual license with BMI, which gives you the right to play 6.5 million songs. It’s your choice.

  Herr, I too studied photograpy (photojournalism) in graduate school, and just recently I was reading about how some photographers would like to create an organization similar to BMI to collect their royalties. Some of their photos are popping up all over the internet, and they can’t keep up with it.

  I know nothing about the business model of Nine Ince Nails and I feel no obligation to explain it. If they’re making money while giving their music away, or selling directly to their fans, more power to them. But I personally know hundreds of songwriters who are behind the scenes. They don’t tour, don’t sell T shirts, and maybe their voices aren’t good enough to record. But they write great songs, and they deserve to be paid when their music enhances your business. I could give you a slew of testimonials from them, but you probably wouldn’t believe them, either. Herr, I don’t think anything I write could change your mind. I’ve never concealed my identity here, and I’m well aware that I can be googled. I’m being straight up with you. I eat breakfast with guys like Dean Dillon, who wrote many of George Strait’s hits. Dean doesn’t even like to talk about himself, much less negotiate contracts. He writes songs. I’ve known some of these folks for 35 years, and they are greatful that they can make a living creating music behind the scenes. Without BMI, it wouldn’t happen for them.

• 22 ALLISON sCULL // Jul 1, 2008 at 12:23 pm

  My understanding is that if you perform your original songs–even if you songs are signed up
  with BMI, ASCAP, SESAC–venue owners are free and clear of jeapardizing any businesses who chose not to pay their dues. Can someone point me to some legal docs to support this?

• 23 Jerry Bailey // Jul 1, 2008 at 12:50 pm

  P.S. on the Nine Inch Nails topic. I still don’t know anything about their business model for distributing their recordings, but I did take a couple of minutes today to check the performing right status of two of the members: Charlie Clouser is a BMI writer and has 206 compositions in the catalog. Michael Trent Reznor is an ASCAP member, according to their website, with 122 songs listed there. I didn’t check other members of the group. I think it’s safe to say that any business, from radio to the corner bar, playing Nine Inch Nails songs needs direct permission from the composers or a license from the organization representing the writer, just like with most successful bands. How they distribute their recordings, whether free or not, has no bearing on the performing rights of the songwriters. The two rights are separate under copyright law, and represent different revene streams for composers. BMI is not involved in the ownership or distribution of recordings.

  Jerry

• 24 LarZ // Jul 1, 2008 at 7:28 pm

  Thanks for the info Jerry.

  The BMI Consent Decree, historically, seems to tag along behind the ASCAP agreements with the US DOJ and Courts dating back to 1941. That 1941 Consent Decree was the result of ASCAP being found in violation of the Sherman Anti-Trust Act in both how it exclusively contracted with artists, and then in-turn coerced payments from broadcasters, theaters, and other places of entertainment.

  How we got to this point in licensing recorded and live performance music is an interesting history. No time or space to write it all here (besides I have other work to do; no one in paying me to be here). Interesting side item, the last legislative attempt to establish the State of Jefferson was in 1941. Life is poetic.

  However, BMI was created in 1938 by radio broadcasters that complained ASCAP was charging arbitrary and excessive licensing fees; the same sort of arguments that BMI defends itself against today from small food & drink establishments.

  Sort of come full circle, eh? Perhaps the time has come for an association of small food & drink venues, in union with live cover music performers, to collectively press for a better deal with the song writers, and basically cut BMI and ASCAP out of the loop?

  Over the years, there has been many modifications to the music licensing Consent Decree. But the fundamental nature of the decree was/is to harness the monopolistic tendencies of licensing agents like ASCAP and BMI.

  Correct me Jerry if I have the facts a bit off, but it appears that there is a Rate Court for BMI that established jurisdiction, with respect to at least broadcast music, in phases between 1994 and 2000 to prevent BMI from charging rates based upon the revenue streams of the venues to which they granted licenses. The broadcasters and background music industry preferred blanket licenses over having BMI monitor their books. That arrangement was granted by the court, and it sort of rules the game today.

  BTW: Why did you not mention the Rate Court in your earlier response, Jerry?

  I am no expert, but I take it that the Rate Court also covers live music performances as well. Right? If not, it probably should.

  So there is a fee metric worked out for broadcast music in a supervising U.S. Court in New York, and that business model, apparently, has been passed down to collecting from small businesses that up to 30 years ago would not have recorded music playing, short of a juke box (for which I believe a rental fee was usually collected) or local radio (which typically came for free).

  The introduction of inexpensive digital music has been a boon to small businesses in terms of providing cheap non-commercial background music. And BMI is simply, and aggressively, catching up. Kinda hard for them not to, because if they do not protect their copyrights in small businesses now, then they will have problems justifying efforts to do so when full digital streaming via the web becomes the norm. There are competing bills working their way through Congress at this time. Contact Wally Herger, and Senators Feinstein and Boxer for details.

  Unfortunately Jerry, the BMI business model does not fit the needs of small businesses in marginal rural economies like the Jefferson Territory. The excessive fees are killing local live music, not to mention recorded music, and making a lot of people (venue owners, employees, patrons & artists) less happy and more poor. Things are bad enough without some guys from New York, sending letters or passing through town, demanding money. To paraphrase an old saying: ‘You are killing your sheep rather than simply taking the wool’. As a result, this summer has become the modern day equivalent of ‘the day the music died’. Thanks BMI!

  Perhaps BMI can get ‘musically creative’, rather than just run what appears to be a shake down operation (however unjustified that characterization may seem to you and the folks in New York or Los Angeles or wherever), and come up with a workable alternative, before the small business owners and musicians with all the time on their hands from being out of business, decide they should organize and write their representatives, or petition the Rate Court, for a better deal.

• 25 LarZ // Jul 2, 2008 at 6:32 am

  One more item, regarding your observation that “it would be difficult to accurately calculate the changing costs of living in various localities and factor that into the license fees”.

  Consider that, if the insurance industry can calculate premiums, and businesses & politicians target advertisements, based upon zip codes and other demographic information, then BMI (through the Rate Court) certainly could employ the same sort of process to determine its licensing rates.

  I think the fundamental proposition that floor space volumes in Manhattan, Las Vegas and Dunsmuir are equal when it comes to generating revenue from live cover performances and recorded background music, and that therefore businesses and venues regardless of their geographic location should pay the same licensing rate based upon square footage, is unreasonable. Just look at the rents that are paid, and the costs of food & drink in the three cities noted.

• 26 Jerry Bailey // Jul 2, 2008 at 9:42 am

  Dear LarZ –

  You have some interesting theories, but they’re generally not based on fact. This blog string is starting to reach epic proportions, and, like you, I can’t justify the time to argue vast abstractions, much of which are fantasy. I didn’t mention Rate Court in my earlie postings because I didn’t think it relevant to the discussions. I still don’t. BMI still licenses some business categories on a percentage of their revenue. And, as far as I know, anyone can create their own performing right organization in America, but I think you’ll find that it takes more work and more know-how than you can imagine to make it viable.

  Jerry

• 27 LarZ // Jul 2, 2008 at 10:04 am

  What facts? What fantasies?

  The Rate Court is not “relevant”? How so, since it is the public arbiter of the metrics and rates BMI charges? I can see why you would avoid the topic, but that is about as relevant as it comes.

  It is an interesting proposition, to create a new performing rights organization. Perhaps a web based market with entertainer playlists and songwriters, coming to a market based agreement on pricing. Hell, we could even create a futures market, and folks could speculate on what would be hot, next winter.

  I am sure some enterprising company (even BMI) could build the application. But you are right, the organization would be difficult to accomplish. But still . . . . .

  Frankly, I find the popular music business overplayed and boring.

• 28 Jim Dyar // Jul 2, 2008 at 12:10 pm

  Jerry Bailey –

  First off, thank you for being such an active voice in this forum. You are certainly helping us understand the BMI position on club royalty fees.

  You mentioned that royalties paid to songwriters are mostly pegged to radio and TV airplay. You also mentioned that the revenue generated from club fees is a tiny portion of BMI’s overall income. Yet the truth is (and this is what LarZ and others are eluding to), this small BMI revenue stream is damaging local arts scenes.

  There’s almost no way to track what songs musicians are playing in clubs and direct that income to the appropriate writers. I can play James McMurtry and Kevin Welch and Buddy Miller tunes until I’m blue in the face, but the BMI royalties won’t ever go to them, they’ll go to Kenny Chesney or someone else that’s been jammed down our throats by the Nashville corporate machine.

  I would submit that the fees that small clubs have to pay are basically being dispersed to writers who really aren’t being represented in those clubs. The truth is, it’s something that’s almost impossible to determine.

  Obviously, I want music writers to be compensated fairly. The system seems to work when it’s based on radio, TV, Web and other media. My cousin Ruth Ellsworth (who co-wrote Stevie Ray Vaughan’s “Crossfire” and “Willy the Wimp” and the Fabulous Thunderbirds’ “Why Get Up”) fought hard against Napster (in its first incarnation) and she was right to do that. Writers should be paid for music that’s downloaded and/or played on radio and TV and the Web.

  But small clubs that are barely making it in Weaverville, Redding, Dunsmuir and Mount Shasta should not be paying thousands of dollars each year to keep money flowing to Kenny Chesney’s songwriters. They should pay fees, but the fees shouldn’t be so high as to discourage them from supporting live music. At the core of it, BMI and ASCAP need to realize (or be made to realize) that live performance doesn’t work the same as radio or TV airplay.

  No one is trying to steal music here. If my band plays “Wagon Wheel” and someone likes it, I tell them, “It’s the Old Crow Medicine Show. It’s a great album. I bought it. You should go buy it.”

  I know BMI doesn’t want to ditch this “small” revenue stream for its “non profit” organization. Every bureaucracy needs funding sources. But it’s time for these bureaucracies to actually play fair in the changing musical landscape. People are getting hip to them.

• 29 The BMI/ASCAP shakedown « A NEW BEAT // Jul 2, 2008 at 2:14 pm

  [...] of these “non profit” organizations. There’s a great discussion happening on the Jefferson Agrarian, where BMI media relations director Jerry Bailey is defending his organization’s [...]

• 30 Jerry Bailey // Jul 3, 2008 at 9:04 am

  Dear LarZ –
  As I’ve said before, I’m not a lawyer and I definitely am not qualified to disucss the pros and cons of Rate Court. If you want to explore this, you need to consult with a copyright attorney. I will say that some people at BMI are very familiar with Rate Court, but not me. From what I’ve seen, BMI seems to do well in Rate Court proceedings, but these things take a very long time and the legal fees are enormous for everybody. My impression is that it’s a last resort solution where large amounts of money are involved. That’s my take on it, but this is a topic that’s better left for the attorneys. BMI does have a good relationship with the radio industry, and their fees generally are negotiated through the RMLC (Radio Music Licensing Committee), which represents much of the radio industry. But I think this discussion group is mostly interested in small, live music venues, so I’m not going to talk about the radio industry here.

  Dear Jim –
  The three writers you mention, James McMurtry, Kevin Welch and Buddy Miller, are all affiliated with performing right organizations and I’m sure they have received substantial radio and TV airplay over the years. And remember that Kenney Chesney, in following your example, spent years playing in small venues before he achieved radio play. He earned his royalties, too. For the most part, the general licensing revenues (from clubs, bars, etc) of the PROs (performing right organizations) have been handled as a supplement to radio royalty payments. Increasingly at BMI, as digital technology enables us to track more types of general licensing performances more accurately at reasonable cost, we have been able to break these out separately on a writers’ roylaty statements. Electronic juke boxes, commercial music services, web streaming, and music played at NFL and NHL sports games are examples of these. We are exploring plans to track and pay on song performances at small live venues, but I’m sure you can appreciate that this must not put an additional burden on those venues and gathering the data must not cost more in expenses than the small performance royalties would justify. The average EDE (eating & drinking establishment) pays BMI only about $600 annually, and they may play thousands of songs annually (recorded & live), so the individual performances of these songs might pay only tiny royalties to specific songwriters. It would make no sense for the cost of gathering this information music to exceed the potential payments to songwriters. We don’t want to spend 50 cents to collect and distribute 25 cents to songwriters. There has been some research which suggests that, in the big picture and over the long haul, tracking music played in small venues would not significantly alter the current distribution of royalties. BMI is aware that this is a sensitive issue for small venues, however, and ideas are being studied to address this question. We never claimed our methodology is perfect, but it’s absolutely the best that anybody has been able to devise while keeping expenses low. Please remember that if BMI spends excessive amounts of money tracking the music, that will mean less money for songwriters. We strive for a fair balance.

  Jerry

• 31 Herr Claus // Jul 3, 2008 at 9:58 am

  I, unfortunately, do not have the time to continue this discussion as I’m not being paid to post here.

  However, I have decided that Jerry is absolutely right, and not only should small venues pony up some fuckin’ cash, but parents should also pay royalties for each person who sings “Happy Birthday” at their child’s party. This approach will undoubtedly lead to a more creative world. Hail to the Republic!

• 32 The Queen // Jul 3, 2008 at 10:10 am

  You ain’t just whistling Dixie, Herr Claus. Of course if you were, one of Dan Emmett’s great great great grandchildren is probably due a few pennies.

• 33 Jerry Bailey // Jul 3, 2008 at 1:10 pm

  Just for the record, music performed at a private gathering attended only by family and friends is not a public performance. Under copyright law, you don’t need permission from the songwriter or anyone else to sing “Happy Birthday” at a private party. Let’s not get silly, folks. These issues are important to a lot of people.

• 34 LarZ // Jul 3, 2008 at 4:02 pm

  Hi Jerry. Welcome Back. I thought you left.

  Again: What “facts”? What “fantasies”?

  * * * * * * * *

  I suppose when BMI goes to the Federal Court to enforce its rights, it generally has a slam dunk case in terms of demonstrating the copyright, and then when, how and by whom that copyright was violated. Pretty straightforward. Moral and emotional arguments are irrelevant. BMI wins. And the costs for the unsuccessful defending party can be considerable. So yes, challenging BMI in court can be very expensive. And if you find yourself in litigation with BMI, you should definitely hire a lawyer.

  However, the example described above has to do with BMI bringing a civil case against a venue for violating its rights (i.e., the rights it exercises on behalf of the copyright holders). Such matters would probably not directly involve the Rate Court, and would more likely be handled before the Federal Court with jurisdiction over the subject venue.

  On the other hand, those same courts, rather than the Rate Court, might permit a civil action against BMI by parties that have not violated BMI’s rights, but seek remedy to defend their own (whatever those rights may be). One would have to establish that the court had jurisdiction in the matter, before it actually agreed to hear the case. Once again, definitely something you should not consider embarking on without first consulting with a qualified attorney. And again, yes, such litigation could be expensive, though perhaps not as much as BMI would have us believe.

  However, although (again) I am not an attorney, I think the proper channel for a citizen’s complaint to address issues concerning the fee metric and licensing process would be through the DOJ, in that the Rate Court is a creature of the Consent Decree, which (as noted above) is the legal mechanism employed by the DOJ to regulate the behavior of BMI in the marketplace. I could be wrong, but it makes sense to me, and is certainly worth a few letters and phone inquiries to the DOJ to determine one way or another.

  The BMI attorneys may have excellent relations with the DOJ and Rate Court (and why not?), but fundamentally (and hopefully) those government entities are there to uphold the law, and intent, of the Consent Decree. Perhaps the law and intent, and the citizens of this fair land, are best served by the current licensing arrangement, perhaps not. As far we know, the issues discussed on this board have not been considered by the Rate Court. Therefore, perhaps that process needs to be explored.

  Certainly, it is not in the interest of BMI to encourage such speculation. And as a spokesman for BMI, it is Jerry’s job to convince visitors to this board that what BMI is doing is not only legally sanctioned (which apparently it is), and morally upright (in terms of protecting legitimate intellectual property rights), but that any resistance to the established system is futile. Perhaps. But as Jerry noted above, “education eventually catches up”.

  Of course, an additional (and relatively inexpensive) option would be for concerned citizens to contact their elected representatives, get informed about the legislative process and clearly express their views, in that Congress has repeatedly demonstrated its willingness to address copyright law in terms of the evolving intellectual property landscape.

  I am sure BMI lobbies members of Congress, particularly those on the committees and sub-committees that concern legislation that impacts its bottom line. And why not? It is their right and, historically, pays-off. Congress is constantly being lobbied to modify the law (true, primarily in favor of more well-financed interests, but don’t let that discourage you, in regard to this or any other matter).

  During each session of Congress, numerous bills work their way through the legislative process. Hearings are held. Draft amendments to the Copyright Act are circulated for support, or opposition. Contact your representatives to find out what is currently being considered. For Seng Thongs, The Stage Door and other live music venues under economic stress as a result, in part, of the subject at hand, I am sure Congressman Herger would be very interested to hear from you.

  A quick search via the Library of Congress website [ http://thomas.loc.gov/ ], shows there are currently 91 bills before the 110th Congress that include the word “copyright” within them. Click the link. Enter the word “copyright” and/or any other search word. Try it, it’s fun (and informative & empowering).

  One bill, Senate Bill 256 is called the “‘Platform Equality and Remedies for Rights Holders in Music Act of 2007′ or the `Perform Act of 2007′’, that is sponsored by Senator Feinstein (D-CA). It specifically amends Sections 112 & 114 of U.S. Copyright law (i.e., U.S. Code, Title 17), which concern ephemeral and sound recordings, and seeks to change, amongst other things, an important clause “by striking `fees that would have been negotiated in the marketplace between a willing buyer and a willing seller’ and inserting `the fair market value of the rights licensed under this subsection’”. (Quote from the bill, emphasis mine).

  Once again, I am not an attorney, but as a layman I wonder about the nature of the bill, and why someone felt the need to change the language from “a willing buyer, and a willing seller” to “fair market value”. Just how does one determine “fair market value” without a “willing buyer, and a willing seller”. Maybe it is to your benefit, maybe not. Again, contact your Congressman and Senators. Have them explain the bill to you, and where they stand will respect to it.

• 35 LarZ // Jul 3, 2008 at 5:39 pm

  Here are a couple more bills working there way through Congress:

  5 . Internet Radio Equality Act (Introduced in House) [H.R.2060.IH]

  http://thomas.loc.gov/cgi-bin/query/D?c110:5:./temp/~c110ErlIHP::

  6 . Internet Radio Equality Act of 2007 (Introduced in Senate) [S.1353.IS]

  http://thomas.loc.gov/cgi-bin/query/D?c110:6:./temp/~c110ErlIHP::

• 36 LarZ // Jul 4, 2008 at 7:08 am

  Looks like the links are “temp” (note the link code string). It is a game that moves. Oh, well.

  The bill names and the position numbers (i.e., 5 & 6 in the sequence) will help you find the links to the written bills. Just go to http://thomas.loc.gov/ and put “copyright” into the search box, and you will find them (along with 89 others, including SB 256 (#13).

  Again, note (since this board thread will hopefully be here for many years), that the list of bills is for the 110th Congress (2007-2009). Once the 111th Congress convenes in January 2009, the every bill will have to be re-registered for that session of Congress, and will get a new bill (and perhaps a shiny new & improved name).

  So pay attention, keep your eyes wide open and on the ball (not the media flak), learn to use the tools of citizenship, get informed and, if you want to change system, take action.

  Otherwise, just keep on bleeting sheeple.

• 37 Jerry Bailey // Jul 7, 2008 at 9:32 am

  Dear LarZ –

  BMI is not the insurance industry and does not have ready access to the sort of information that the insurance industry uses to adjust rates from market to market. That’s their business. Furthermore, you seem to assume that BMI bases it’s music licensing rates on New York or Las Vegas real estate costs (or similar standards) rather than those of your area. That’s not the case. The fees are applied nationally, so they’re based on the national average. You might find that your values are considerably higher than those in, say Arkansas or Virginia or North Dakota. So there’s no assurace that bringing a whole new set of numbers into the calculations would lower the cost of a music license in your area. It certainly would make the process of calculating music licensing fees much more complicated for everyone.

  Jerry

• 38 LarZ // Jul 7, 2008 at 10:19 am

  BMI is a very sophisticated licensing agent. Many of its stakeholders, shareholders, and fee revenue sources are also very sophisticated marketing and business people. Despite your obfuscation of the issue, I know you understand the concept of targeted marketing, so get real.

  The insurance industry is but one example of an industry that uses zip codes and local demographics to determine its pricing structure. More corporate entities use such metrics, directly or indirectly in their marketing, than those that do not. I am certain that BMI is quite capable of gathering an employing similar metrics, if necessary. If not, then it truly is a ‘dinosaur’.

  Correction: I am not assuming that BMI uses NYC or Vegas real estate costs to base its fee. On the contrary, I simply note that a flat cost for everyone across the nation is inherently uneven in terms of the relative cost to each license holder.

  NYC and Vegas are very different from Dunsmuir and other rural economies. The point being that the percentage of gross revenue of your flat licensing fee, for a music venue in Manhattan or Vegas, is lower than for a similar size venue in a rural economy like Dunsmuir.

  Fundamentally, if BMI is using a national average, then the bottom market is paying more and the top market less, on average.

  I do not expect you to buy into the notion of changing the system. It is your job to enforce it, not change it. A BMI executive, like yourself, probably spends more money taking a Congressional aide or other facilitator, to lunch in Manhattan, than many rural coffee houses gross in a day.

• 39 admin // Jul 7, 2008 at 11:26 am

  Excellent dialogue, and we all appreciate the time and effort Jerry Bailey, Larz and others have put into this, BUT….

  Here’s my 3 cents (adjusted for inflation), FWIW:

  Small clubs like those here in the North State too frequently do NOT make money when hosting music events. They are offering them because:
  a) they want music in their communities;
  b) they want to support local musicians;
  c) they might sell a few more lattes/beers/whathaveyou;
  d) they want to see live music in their venue.

  Artist royalties are a completely separate issue that BMI, ASCAP and their ilk like to toss into this argument to cloud the real issue. I especially love it when BMI implies that “we’re just a non-profit here to protect artists.” Many folks say, “Hey, they’re not making any money – they’re a nonprofit.”

  Some of the best paid CEOs and admin-types in the US work for *nonprofits*. All nonprofit means is that the NPO has to spend what it makes annually. If this means printing up glossy brochures and paying suits to go around and harangue small music venues into paying an annual fee that artists will never see, they’re all about it.

  If Eric Clapton cashed in real big with “Cocaine”, I’m sure BMI or ASCAP made sure that JJ Cale got his share for writing the song. That’s a good thing. What’s not a good thing is that the Stage Door or Mamma Llama’s cannot have a community get-together and invite a few local musicians to entertain their patrons on a Bob Dylan Night without paying BMI or ASCAP their annual extortion fee that Zimmy will never see.

  If you’re a songwriter, copyright your material by all means. But I wouldn’t get in bed with these corporations – it’s like Robert Johnson making a deal with ol’ Beelzebub at a lonely crossroad in Mississippi…… I think their days are numbered, and they are getting skeered.

• 40 LarZ // Jul 7, 2008 at 6:36 pm

  Admin -

  I do not think they are scared. Apparently, the fix is in, and working overtime.

  The copyright law is being whored out to organizations like BMI, who do their own ‘pay to play’ with Congress. Look at the modifications to the law over the last 20 years, and the current efforts to tweak it further. Who asks for and benefits from the changes?

  I have never disagreed with the fundamental notion that creative talent should be compensated for creative efforts. On the contrary, but the Constitution only calls for a ‘limited time’, not the retroactive extension of rights for “life + 70″ or “95 years” for corporate managed “work for hire”, as it stands today.

  The goal of licensing parasites like BMI is to make every morsel of intellectual or creative talent and activity ‘under license’, forever.

  The only thing they are creative about is gaming the system. Like you say, there is a lot of profit in non-profit

• 41 Jerry Bailey // Jul 8, 2008 at 12:56 pm

  I want to thank of of you for sharing a little of your time to read these posts, and for allowing me to sound off. If you’ll allow me, I’m going to ramble a little here. If I go on too long, you certainly don’t have to read it.

  The business of songwriting is one of the most misunderstood careers imaginable, and it’s clear to me that some of you don’t have an accurate picture of what their world is like. There’s a terrific story in the June issue of Southwest Airline’s magazine, which I hope you’ll read online at http://www.spiritmag.com/2008_06/features/ft3.php. Like you, most songwriters are small business people trying to scrape out a living. They’re not celebrities, and you probably wouldn’t recognize their names. Most of them barely pay their bills.

  Judging from the names some of you have hurled my direction, you think performing right organizations are unnecessary at best and corrupt and greedy at worst. I disagree on that, but you say my opinion is invalid because I’ve made my living for the last 36 years in the music and TV business. Okay, I accept that. I’m prejudiced.

  If we can have a little fun here, let’s go hypothetical and pretend you want to start your own alternative organization to represent songwriters and business owners on copyright issues. The first thing you must do, I suppose, is convince thousands of songwriters and music publishers to believe that you will pay them more justly than your competitors so they’ll sign affiliate agreements with your organization. Next, you need to convince about 10,000 radio stations, and a few thousand TV stations and networks that they need a music license (costing thousands of dollars) to play the music of your songwriters. While you’re doing that, you need to create a system to track the songs of your songwriters at those stations and many more businesses that play the works of your affiliates. (Remember that a lot of those business owners believe music should be free for them). Then you need to negotiate reciprocal licenses with every performing right organization in the developed world (about 80 of them) to protect the copyrights of your affiliates and collect royalties when music crosses international boundaries (representing about 27% of a BMI songwriter’s income). Then you need to develop the infrastructure to distribute royalties to all of your songwriter and publisher affiliates in an accurate and timely manner (remember that their accountants and lawyers will be looking over your shoulder all the time, as they should).

  Let’s pretend that, as a former club owner, you want to exempt all small, live music venues from licensing fees, since they don’t make much money off music anyhow. (We’ll draw the line at 100 persons or less occupancy, which is sure to infuriate everybody with 101 or more occupancy.) Immediately, your international reciprocal agreements unravel, because the performing rights organizations in Ireland, England, Germany, Argentina and Australia (to name a few) are not going to collect royalties from these businesses if you’re not doing the same for them (their governments have said their songwriters are entitled to this money, and, by golly, they’re going to collect it for their composers). OK, so you kiss those royalties goodbye, even though the U.S. Congress has said your songwriters are entitled to those royalties, too. Now you’re faced with the problem of convincing your songwriters they should not move down the street because you’re not collecting their lawful royalties (and, after all, those songwriters are your first love, and you promised to take care of them). And then you may have to answer to the Jusctice Department because you’re not licensing all businesses of the same class and category in like manner, as you’re required under your consent decree. What’s your next move?

  You have to ccomplish all this on just 12 cents or less (to cover expenses) of every dollar you collect, mainly because you can do it, but also because you need to be competitive. The rest of the money, about 87 cents of every dollar, goes right out the door as royalties to your songwriters and publishers. Did I mention that you want those songwriter royalties to increase at a healthy pace year after year? BMI has maintained about an 8% growth for the last decade or so.

  Does all of this sound like fun? You can do it, too. The best part is when you try to explain to some people about copyright law and what you do for a living, some of them call you “parasite” and “corrupt” and “dinosaur.” It’s not a job for thin-skinned people.

  I’m not complaining, folks. I love this business, and I love supporting songwriters. What keeps people like me going? It’s testimonials from songwriters like Otis Blackwell:
  “It all begins with a song. That’s my motto. And I began with BMI over 30 years ago, writing such hits as ‘All Shook Up,’ ‘Don’t Be Cruel,’ ‘Return to Sender’ and ‘Great Balls of Fire.’ I have always received proper payment, which I know comes from BMI’s efforts with the folks like you that use my music. And I’ve always received great treatment, which I know comes from the kind of people that run BMI.”

  Thank you, Otis, and thank you, business owners!

  Jerry

• 42 admin // Jul 9, 2008 at 9:34 am

  Jerry, here’s some thankful words from a Redding business owner, who sounds very appreciative of ASCAP’s efforts:

  “(our) Bar and Restaurant payed ASCAP last year(reluctantly), and today we got a phone call asking, if we had music every night? Is there a cover charge? What is your seating, about seventy? The answers to all those questions were no. The seating is the same as last year. I already pay them yearly, and they still want to get more out of me. They need to pick on someone else! I paid my fee so that I didn’t have to stop the music on Thursdays, and every other Sat., don’t try and get me for more money especially in these hard times!! Jerks!! I’m assuming they saw the ad in the paper and a red flag went up because we’re having music more than one night a week now, so they’ll need more money for that…”

• 43 LarZ // Jul 9, 2008 at 10:19 am

  Hey Jerry,

  You sound like the guy who owns a big-ass SUV, and complains about the price of gas, but still struts around proud because he owns a big-ass SUV, thinking we all would want a big-ass SUV, just like his; going to the exact same places, in the exact same way, if we only could. And what is more, Otis and other artists he favors, occasionally go for a ride his big-ass SUV, and like to party with him, so we (the ignorant) can all buzz-off.

  I have spoken with a team of venture capitalists. They agree that there is an opportunity to tap an under-served market for small venue live music, and that an excellent return could be made on a much smaller margin, with increased volume of transactions, using an alternative business model. They do not need to take over the entire licensing industry, just efficiently work with a small and under-served niche in the domestic market. Of course, a study has to be done, and a few people currently in the business will have to be engaged. You’re right, probably will not happen. But if they decide to move forward, you will be hearing from them, indirectly.

  As for me, like I said above, I find the popular music business overplayed and boring.

  150 years ago, long before the laws that banned unlicensed public performances of music, and the Copyright Act of 1909 that codified the concept, a creative work was protected for just 28 years, plus another 14 upon renewal of the copyright; a “limited time” (as per the Constitution) for the benefit of the creator, not his kids, or grand kids or great grand kids, or off-shore trust funds, just the artist. A corporation did not have such copyright.

  It was understood that corporation did not create, only human beings did.

  A professional musician would play in a venue or on the street, and work out an arrangement with the venue and/or pass the hat to make his/her way in the world. The music was live (not recorded & commodified, but live), and fundamentally if the musician was not good, or the time & place was not right he did not make a living off music (and so hopefully had a teaching gig or other job to see him through this thing called life).

  People did not listen to recorded music, but relied upon other human beings with talent to play or sing a tune, bringing everyone together, if just for a moment. Sometimes, the hat was passed, or food and drink given in a reciprocal flow. And the music flowed freely from one heart to another, and those that heard a new song, and had the talent to replicate the tune, did so, as human beings have done for at least tens of thousands of years, without the need of intermediaries like agents or licensing.

  Short of a collapse of the ‘current level’ of civilization (or a leap into a new frontier), that human world is gone with the wind, buried under all sorts of laws, fences of futility and paperwork.

• 44 Jerry Bailey // Jul 9, 2008 at 1:40 pm

  Dear LarZ –

  Why do you want to get personal? Just for the record, I do drive an SUV, but it’s medium size (Explorer), eight years old and in need of new tires. We raised three children, and a smaller car was needed to carry the family. My wife (a firefighter/paramedic) drives a 10-year old Honda. We have a comfortable life, but not lavish. Much of my income nowadays goes to college tuition for the kids, since all are in school (one at the U.S. Naval Academy). My older son just returned home after nearly four years in submarine on the other side of the world. We live on a small farm near Nashville, with two horses, eight cows, two dogs and assorted cats. We’re not jerks.

  Jerry

• 45 LarZ // Jul 9, 2008 at 2:16 pm

  My apologies Jerry, it was not meant to be “personal”. By “you” I meant “BMI”. The SUV is a metaphor for BMI as a large corporate business model.

  And I certainly did not intend, nor do I feel I have, cast any dispersions on your family. They sound a lot like mine.

  I just happen to think the BMI model does not work for small rural live music venues, or the songwriters who are not on the top of the BMI playlist.

  After 40 posts, you finally opened up and began to talk specifically about the BMI business model, instead of obfuscating with the standard PR that you undoubtedly have used many times on-line and off.

  I, personally, have grown tired of having you avoid the discussion and/or make statements about bad facts and/or fantasies on my part, without any specifics. We disagree about the live performance rights business model. I have asked reasonable questions about it, rather than simply rant. And yet, you have not or cannot engage on that level, because, apparently, it is not part of your job description at BMI.

  If I am wrong in my interpretation of what it is you are doing here (particularly when you showed up so fast as this thread began and have hung on so long with so little that is really new to contribute), then I apologize.

• 46 The Queen // Jul 10, 2008 at 10:26 am

  Thought ya’all might get a kick out of the connection between BMI/ASCAP and waterboarding:

  http://music.guardian.co.uk/news/story/0,,2289778,00.html

• 47 Jerry Bailey // Jul 11, 2008 at 9:14 am

  Dear LarZ –

  I realize it must seem strange that I came crashing into your discussion when I did, offering advice that none of you asked for, directly. And it clearly annoys you that I don’t seem to engage in questions about the business model or what some might consider the philosophical or moral issues of music licensing.

  Let me begin by inviting you into my world. Every morning, I google “BMI music” and the “U.S. Naval Academy” I want to know what is happening around the world with my two passions. BMI is my employer, and I have been a student of the organization for many years, and my wife and I are co-presidents of the middle-Tennessee parental support group for families who have children training to become officers in the Navy and Marines. One morning, your blog popped out of the search. When I feel that a blog postings display unusual anger and/or confusion about BMI, I sometimes jump in, at my option, during spare momets during the day or while doing other things, to provide another opinion. There’s no other reason I’m here. There’s no conspiracy or directive.

  If BMI people tend to speak with one message, it’s because we think it’s better that way. We work to develop the message. The world of copyright is not simple; as much as we try, it’s very difficult to explain our work in a few words to people who have had little experience or training in copyright law. Copyright is not taught in most schools, and many small business owners feel they can’t afford the expense of a lawyer. It can be easier for us to deal with Wal-Mart or a radio station because they have people who know the ins and outs of the law, and music licensing is simply a cost of doing business for them, but with some smaller business owners, it can be a painful process for everybody. Nevertheless, we consider it an important responsibility of ours to take the time to explain this business.

  As for why I avoid getting too far off the beaten path — sometimes I think it does little good to debate certain issues. At BMI, we work in a world that is populated (and sometimes ruled) by poets, musicians, lawyers, judges, politicians, accountants and business owners (very large and very small). It’s the nature of our business that we must walk a fine line between very different personalities. Sometimes we don’t have the luxury of flexibility because the law or the courts have created rules we must follow, or because we hear from our songwriters that they want something done a certain way.

  We try very hard to be fair, honest, decent people here. Every day, a small percentage of the thousands of people we deal with will tell us lies, threaten us, or call us names. Usually, we can spot a lie immediately, but we don’t have the liberty of saying so. We are trained to deal with it, and we have a process to address dishonesty in a courteous and professional manner. I hear from some business owners who claim our licensing representatives are rude or discourteous, but I see their training and I listen in on some of the calls. I know this staff, and they’re a terrific bunch of people. Sometimes, business owners complain that we threaten and harrass them with too many phone calls and letters, and then when they are hit with a federal lawsuit, they claim we never told them it was coming. We try to sell our licensing on the importance of doing the right thing, on the simplicity and convenience of licensing 6.5 million terrific songs with a single annual agreement — but in the end, sometimes it can come down to the law. Some business owners will come up with dozens of stories about why BMI stinks, but in the end, it seems they just don’t really want to pay our songwriters. Most of the Federal Courts have heard it all before, so if it goes that far, it’s usually a slam-dunk.

  I keep a copy of copyright law on my desk and have read the sections dealing with music hundreds of times, but I’m no lawyer. I do communicate with our lawyers every day. At BMI, we are extremely carefull about following the law, and we also try to be good corporate citizens and nice people.

  As for my comment about some of your posts not being factual or being fanciful — I shouldn’t have said that. It’s not that I didn’t believe it, because I did and still do. But making such a comment so bluntly only annoyed you and caused you to want a full explanation (which you deserve) — but I felt you were getting way off into some tangents that I could not let go unchallenged, but that I don’t have the liberty or time or authority to address. I’m keenly aware that everything we post here is public and enduring. There are some things I can’t put into writing, and you might not believe them, anyway.

  As a former newspaper reporter covering the music business for the Tennessean, Nashville’s daily newspaper, I began writing about BMI in 1972 when I attended an awards banquet. For many years after that, I worked for other companies across or down the street from BMI’s offices. I came to know the BMI staff, respect them and appreciate what they do. When I worked for the cable TV channels, TNN and CMT, we purchased what I believe was their first network cable TV music license (for no small price). I’ve seen BMI from both sides of the fence. It is not a perfect organization, but I think it has made an enormous contribution to the world of music and to those businesses that use music. Nobody can do what BMI does better.

  Best regards,
  Jerry

• 48 Jim Dyar // Jul 11, 2008 at 12:35 pm

  Jerry:

  I think the general consensus from small club owners, musicians and music fans up here in far Northern California is this: BMI and ASCAP fees are simply too high for businesses operating on a thin margin. Because of these fees, clubs are dropping live music which gives musicians no place to play and music fans no place to listen. That’s the fundamental truth of what’s happening here.
  But no matter what we tell you, the basic (and very eloquently stated) response is going to be, “Sorry. Pay up or get sued. The law is on our side. There’s nothing you can do.”
  I guess one solid option would be this: All original music clubs that cut BMI and ASCAP completely out. It’s too bad because it’s an attack on the great tradition of mixing original work with influences.
  BMI apparently has no interest in working with small clubs to promote local live music scenes. BMI and ASCAP should be helping small clubs stay afloat rather than shaking them down.
  I’m thankful for all the dollars BMI and ASCAP have filtered to artists through royalties from album sales and airplay. It’s unfortunate, however, that these organizations view independent artists as the enemy and small clubs as a revenue stream they can squeeze and control and threaten without fear of reprisal.

• 49 Peanuts // Jul 12, 2008 at 10:32 am

  Wow! Excellent information from Jerry Bailey in this article. Thanks!

• 50 don // Jul 17, 2008 at 12:19 pm

  Music Lovers …

  Operating a small music venue is more a labor of love than a business. I can honestly say that we have never made a dime off any of our music presentations. It is true that sometimes the gross sales will increase but never enough to cover expenses: additional crew, door guy, sound guy, meals for the band and sometimes rooms. Insurance costs are greater for music venues. If we break even it is a successful night.

  Literally all of the cover charge goes to the band: a small percentage refuse to pay the cover and are let in for various reasons. It is not uncommon for us to subsidize the musicians when the cover will not compensate them enough: not a smart business model.

  We did it mainly because I love live music and is what i missed most after moving from the bay area almost forty years ago where I was lucky enough to experience the music renaissance of the sixties.

  Our club can afford to take an occasional hit from a less than successful night but after awhile it becomes obvious that stricter business management is necessary to maintain the continued operation.

  While I am totally on board with the idea that creative artists need to be compensated for their work. The “hit” from B.M.I and the two other licensing organizations have become the straw that broke the camels back. I cannot boost cover charges because people will simply not turn out. And I cannot afford to continue covering the losses.

  I really have come to view B.M.I. and the other collection agencies as a tax. A tax that bears no relationship to my revenue stream and are collected by an agency that really could care less if I stay in business or not : they are not so much like the guy who drives a SUV and complains about the price of gas: but more like the musician who no longer hears or cares about the music.

  Their coldness and lack of respect: their don’t give a shit attitude make it extremely hard for me to turn over my hard earned money to them.

  Probably, what the shill from B.M.I will never understand is that this is a rural area that simply does not have the population base necessary for a truly viable club.

  Thanks Don

• 51 admin // Jul 18, 2008 at 7:50 am

  Don, you have encapsulated the gist of what the original post is all about. The royalties issue is obviously a multi-headed hydra that sparks emotionally heated arguments. But, the bottom line is that small venues are being squeezed out by the aggressive and overzealous tactics of the industry *soup Nazis*. (I’ll probably be hearing from Larry David & Co. about using their copyrighted terminology).

  Thanks to the Blue Sky Room for presenting such a great and eclectic mix of music to the North State these past few years. We’re going to miss it. Once again, it’s the little guy who suffers… in other words, the common folk.

  Woody Guthrie must be spinning in his grave.

• 52 Jim Dyar // Jul 18, 2008 at 2:10 pm

  Don:

  Thanks so much for the incredible music you brought to your club over the past few years. Thanks for this perfectly stated, honest post.

• 53 admin // Jul 19, 2008 at 2:26 pm

  Another sign of corporate overkill:
  http://tinyurl.com/6jmfb9

  Gotta protect Prince’s assets… sheesh.

  Support the Electronic Frontier Foundation!

• 54 Lou // Jul 20, 2008 at 1:55 pm

  Had to laugh at the absurdity of it all yesterday while listening to “Wait Wait Don’t Tell Me” on KCHO. Apparently BMI et al are after the Dept. of Defense for back payment of royalties for the practice of blasting the music of Celine Dion and other dubious artists as a tactic to mess with detainees at Quantanamo and other torture sites.

  I guess they’re not offended that the gov’t is using admittedly crappy music to drive prisoners crazy, they just want their cut.

  To quote John Prine: it’s a big ol’ goofy world…

• 55 RICE // Jul 20, 2008 at 2:28 pm

  hey everyone i’d just like to say; download as much free music as possible,burn cd,s for friends and neighbors,share your huge music library’s with others.piracy is the american way.
  as fear stated in one their songs”lets have a war”
  thank you for reading this incoherent blather.
  rice

• 56 Mario Rubino // Jul 21, 2008 at 7:55 am

  As far as what Don says as a producer in small town venues for over 30 years I can say both that the royalties collection agency’s use a model that does not represent any reality based models. They get in with “you need to support artist” and leave with arbitrary rate structures that don’t reflect anything other than a dinosaur of a corporation keeping its head just above water. They are archaic and need to be put in the museum with other relics of the past. If they cared to prosper both the Musicians they serve and the company the would flex like every other corporation in a America and provide more for alot less.

• 57 admin // Jul 21, 2008 at 2:08 pm

  After Don Phelps’ comment, BMI Jerry Bailey’s recent silence is particularly, ummm, deafening.

• 58 Keith // Jul 22, 2008 at 10:55 am

  Well spoken Don, and thanks for bringing great music to our lil town for the last few years. Question is, where are the bands gonna play? Guys like Don Phelps will no longer be here to provide a stage for traveling musicians…is that what you want Jerry?

• 59 Theneaux // Jul 22, 2008 at 12:52 pm

  I just found out about your site from a friend who’s been following this conversation. I’m a Dunsmuir schoolteacher, musician, and songwriter, and hosted an open mic night at the Stage Door for a while a couple of years back.

  Siskiyou county (and Shasta too, probably) is chock full of artist and musicians, but before the recent era of the Blue Sky Room, Stage Door, etc. there has never been an infrastructure of venues to support an actual scene. Setting all legal issues aside, without these clubs and live music to tie our communities together we move one step closer to the sad decline we all recognize in our towns: empty storefronts, failed businesses, and the collapse of a thriving nightlife and the culture (kultcha?) it helps create.

  It seems to me that in our media-saturated culture it’s impossible to divide popular music from folk music; I can pick up an acoustic guitar and cover Britney Spears and it’s folk music because everyone in the audience has heard the song on the radio, or seen it on YouTube, or lifted an ironic post-emo band’s cover of it from the band’s MySpace page.

  I understand that this flies in the face of intellectual property law. But it’s a social reality. Regardless of who’s entitled to the royalty check, once a song is out in the world, the world owns it.

  Thanks for the great discussion and thanks Don for helping bring Dunsmuir back from the brink of suck.

  P.S. I stumbled across a great cafe / pub in Minneapolis that has a no-covers policy, specifically to nurture independent music and also circumvent BMI fees. The place seemed to be thriving…possibly a viable model?

  http://acadiacafe.com/

• 60 Local Venues Feeling the Pinch // Jul 29, 2008 at 4:07 pm

  [...] (Editor’s note: this is an article from Tom O’Hara, proprietor of The Stage Door in Mt. Shasta, which continues the conversation began in “Hard Times for Jefferson’s Small Music Venues.”) [...]

• 61 Female Performer // Aug 14, 2008 at 4:46 pm

  Hey Jerry. YOU SUCK!

• 62 Female Performer // Aug 14, 2008 at 5:11 pm

  I would like to say that the little venues have giving
  aspiring musicians a place to play covers and originals and practice their craft so they can someday be heard.Yes it is sad to shut down live music. Music makes all of us feel good. If one plays some covers so what we are teaching others about the different styles and spreading the word. I agree don’t claim you wrote someones song but give them credit. Jerry and your godfather BMI don’t let the door hit you on the way out!

• 63 Jerry Bailey // Nov 4, 2008 at 10:49 am

  Sorry, folks, I’ve been away from your dialogue for a while and haven’t been following the conversation. Don, you did a good job of explaining the difficulty of operating a small music venue. I’m sure there are hundreds of small venues across the country who share your pain, especially in these hard times. Believe me, I understand the importance of musicians having a place to play to hone their craft. I’ve spent a big chuck of my life listening to music in such places. BMI has absolutely no interest in shutting down live music. My rhetorical question to you and others is: if you’re having trouble meeting the financial obligations of your business, why is it that the songwriters who write many of the songs you use must be the last you would want to pay? Why not refuse to pay the electric company or the beer distributor or your serving staff? I think the answer is simple: All of those other people have the immediate power to withdraw their product or service. Songwriters do not. That’s why BMI is so diligent about protecting the lawful rights of those creative people. Nobody else can do it as well.

  Lou, that mess with the Dept. of Defense using music to torture people has nothing to do with BMI. It apparently was all fabrication by some bloggers who didn’t bother to check the facts. BMI never attempted to license the Guantanamo prison. I doubt we could if we wanted to, since it’s on foreign soil. BMI licenses only music played in the United States. I love the internet for all the knowledge it contains, but you sure can’t believe everything you read.

  Folks, those of you who think BMI is leaving or going away need to think again. This organization has been serving songwriters and composers since 1939, and it’s stronger than ever today. We don’t work for the record companies or recording artists, so if you choose to steal their music, you hurt a lot of creative people, but it doesn’t impact BMI. BMI doesn’t sell recordings. The music industry is a lot more complex than some people realize, and it doesn’t work like most people think. The more you learn, the more you’ll understand.

• 64 Herr Claus // Nov 4, 2008 at 11:03 am

  JERRY! JERRY! God I’m glad you’re back, I missed you really I did…you’re so absolutely right about this whole approach. Now, what I’d really like to know is what I can do to help. I heard some drunk in a bar singing a John Denver tune the other night and I almost punched his lights out (not just because I hate John Denver, either). “If Jerry were only here,” I thought to myself. “He’d have this place SHUT DOWN!”

  So…next time I hear someone singing a tune, what can I do to report them? Or does BMI have a drop box for their bodies? I just want to help…with luck, we can Protect the Rights of the Owners and SILENCE THESE ESTABLISHMENTS FOREVER! Like you, Jerry, I envision a future where songs won’t be performed without paperwork. Ah, the glory of peace and quiet!

• 65 LarZ // Nov 4, 2008 at 11:26 am

  Jerry,

  A rhetorical response.

  A business negotiates with serving staff. People come and go. A business can run all sorts of lighting, and whatnot. They can amp up the power use, or they can conserve, pick and choose lighting for efficiency, conservation, optimum value.

  BMI is a predatory monopoly. There is no negotiation or sliding scale or ability of the small venues to pay as they go. BMI is a legalized racket, that was created by the radio industry to prevent another racket, ASCAP, from stepping on their toes (quite literally in the context of the era). The sooner small venues are organize and cut a deal directly with willing artists at true market price, the sooner we will all benefit.

  Your false characterizations of the market, and how BMI operates are mute. People may pay-up out of fear, but they don’t believe your lame rationalizations and self serving stable scum.

  Herr Claus may find you to be an entertaining diversion, but frankly you bore me.

  L

  L

• 66 Allison // Nov 4, 2008 at 4:21 pm

  Earlier in this blog, I stated” There are two venue owners (in this area) that did not understand about bands doing original songs. They seemed to think my performing my own songs–that are signed up with BMI–would put them in jeapardy. I wanted the facts written from a BMI Rep so thanks.”

  I believe that an artist can perform their original songs anywhere at anytime, regardless of a BMI affiliation.

  I did not get a response on this. Jerry Bailey, do you care to respond?

• 67 Freedom // Nov 4, 2008 at 8:45 pm

  McJerryBush

• 68 Freedom // Nov 4, 2008 at 8:52 pm

  To Herr Claus, That was funny To Jerry MaHohney
  Oh by the way I heard
  some some kids singing Happy Birthday to a crowd of people at a park what should I do?,call MUSICBUSTERS and report a gross injustice to the author of the this song?
  If you hear somemusic ……
  in your neighborhood….
  who ya gonna call?
  Musicbusters

• 69 Freedom // Nov 4, 2008 at 8:56 pm

  T o BMI performers If your playing your bmi music at club that does not pay BMI fees means you cant play your music there unless they pay fees for the BMI owned music you play.In otherwords you probably canceled yourself out! Does this make sense? F

• 70 donnie // Nov 4, 2008 at 9:06 pm

  this thread is still alive?

  mr. jerry,

  if 1,000 people go to a club, and all play the same piece of music in synch on their ipods, would bmi expect a fee?

• 71 gilmore // Nov 4, 2008 at 9:55 pm

  If a BMI artist plays his/her songs in a non-BMI club, is that okay?

  Jerry, can you please clear up this simple question?

• 72 Freedom // Nov 5, 2008 at 10:17 am

  Notice how Jerry just disappeared like McCain just did? Come on we want to know NOW! Freedom

• 73 donnie // Nov 6, 2008 at 11:06 am

  seems jerry passed through with a sort of wam-bam ‘fckyu people’ dump.

  apparently he does not really care.

• 74 Herr Claus // Nov 6, 2008 at 11:21 am

  Donnie, you’re out of your element…am I the only one here who gives a shit about THE RULES!?!?

• 75 donnie // Nov 6, 2008 at 11:36 am

  forget about it.

  he is not coming back.

  he does not love us.

  let’s go bowling.

• 76 gilmore // Nov 10, 2008 at 7:04 pm

  http://www.theonion.com/content/node/43029

• 77 gilmore // Nov 10, 2008 at 7:05 pm

  O, Jerry ‘Enola Gay’ Bailey, Where Art Thou?

• 78 Jerry Bailey // Nov 11, 2008 at 9:47 am

  Folks, I will answer questions as long as a some of you want me to. It’s hard to keep coming back here, however, when a few people get their jollies throwing insults my way.

  Several of you have asked about whether you may perform your own songs, if you are affiliated with BMI, in an establishment which does or does not have a music license with BMI. The answer either way, under copyright law, is “yes, if you own your own publishing and are the only writer on the song.” Under copyright law, the copyright owner has the exclusive right of public performance. Anyone who performs (recorded or live) your copyrighted music must have your permission. Sometimes songwriters may want to give away their music, but their publisher may feel differently. That publisher may be affiliated with BMI and will expect performance royalties. Sometimes, there are multiple writers on a song, and they may not agree about giving potential royalties away. Most professional songwriters, not wanting to handle the task of granting rights and collecting royalties, assign that responsibility to a performing right organization. Even if you affilate with an organization such as BMI, your contract does not prevent you from direct licensing your music to anyone. Whether or not direct licensing is a wise financial decision is another matter, but I won’t go into that now, since none of you have asked that. If I remember correctly, Willie Nelson once sold the copyright to one of his biggest songs for $50. Over the years, that copyright has probably earned its owner millions of dollars, but Willie says he really needed that $50 at the time. Short-term decisions can have long-term repercussions.

• 79 admin // Nov 11, 2008 at 9:58 am

  Thanks, Jerry. This is the answer to the question many were asking.

  “Under copyright law, the copyright owner has the exclusive right of public performance.”

  Folks, let’s maintain a civil tone – this is a serious matter for many.

• 80 LarZ // Nov 11, 2008 at 11:13 am

  I do not get any “jollies” from having to call you out, Jerry. On the contrary, I have been very restrained in terms of “insulting” you, personally. I have also extended to you the courtesy of apologizing, even when you have misinterpreted what I have said (or perhaps feigned offense, back there at post 44).

  With respect to the subject of public performance royalty fees, you remain, as always, a well-rehearsed parrot. All these years, and the same stories and arguments, repeated again and again. How many bulletin boards do you post on weekly, between press releases, congressional lobbying, and media interviews? Such a busy man. And yet you take your time to come back here (again and again) because, we are “ignorant” and need “education”. Altruism? Or just doing your job, putting out fires amongst the hicks in the sticks?

  You have not offered anything new on the subject in quite a while. Really. You have exhausted all of your arguments. It would be more straight-up of you to just post a link to the BMI FAQ, and be done with it.

  L

• 81 Allison Scull // Nov 11, 2008 at 11:44 am

  Jerry,
  I very much appreciate your taking the time to clarify….I was pretty certain this was true..but I felt the right information needed to get out there.

  I also believe this is a forum where people can express their points of view…any kind of rude comments kind of kills the ability to want to speak up. We have to be able to allow everyone to have an opinion even if you disagree. Is it about being right or about trying to understand all sides?

  Thanks again, Jerry.

• 82 admin // Nov 11, 2008 at 11:47 am

  Word, Allison. Word.

• 83 Allison Scull // Nov 11, 2008 at 11:49 am

  ?

• 84 Jerry Bailey // Nov 11, 2008 at 2:47 pm

  Dear LarZ–

  I honestly am sorry if I disappoint you with the sameness of my responses. Copyright law as it pertains to your businesses has not changed in the last decade. BMI’s licensing practices evolve with the marketplace, but there have been no major changes in music licensing for eating & drinking establishments (a licensing category) in the last 10 years. We do work more closely with many trade associations (offering discounts for members of many associations) than we did formerly, and we are talking with the Folk Music Alliance about problems faced by small live music venues, but there’s nothing else I can tell you about that at this moment. Last time I heard, the ball was in their end of the court. I see my role in your discussion group as a person who can explain BMI policy and shed some light on how professional songwriters earn a living. I’ve spent my entire career (36 years) in various parts of the Nashville music industry, so I know something about that and am happy to discuss it. I’m not a lawyer and will not offer you legal advice, but I will share what I know to be true. I do handle media relations for BMI in litigation, and I can almost recite by memory the parts of copyright law that deal with common songwriter issues. What do you really want from me, LarZ? Seriously. I’m here to help if I can, but I can’t make music licensing go away. The fact is, I wouldn’t want to. In a few minutes, I put on a tux, go downstars and help this organization hand out awards to 50 of country music’s top songwiters. I have great respect for those people and my real job is to help them make a living. Our Songwriter of the Year is somebody you probably never heard of, but you’d sure know his songs. If you write a hit song, we’ll fight for your rights, too. Songwriters are the center of our universe here.

• 85 LarZ // Nov 11, 2008 at 9:39 pm

  Thank you, Jerry. I appreciate that. Truly.

  From the looks of the market, there is a growing impossibility for small venues and small time performers to make a living playing live music.

  Live music is an ancient art, and something that should not be stepped on just because it cannot make BMI (or the songwriters) a profit to their current comfortable formula (which I say again is not the market price, but the fixed price by a legal monopoly).

  Yes, songwriters make money, at the expense of the music. Probably for the first time in the thousands of years of human history, a person who does not perform music, but writes it (and holds a piece of paper, backed by lawyers), makes money, while the performers, the people who put life into the music, give way to electronics and royalty collectors.

  The argument between you an venue owners over money, is suffocating live music.

  There is a better way. All it takes is some vision and a willingness to step out of the box.

  L

• 86 Jim Dyar // Nov 12, 2008 at 2:51 pm

  A bit of news here. The affable Casey Beathard was named BMI’s songwriter of the year. He co-wrote a bunch of hit mainstream country songs this year.
  Here are some examples of his work:

  … from Rodney Adkins’ “Cleaning this Gun (Come On In Boy)”:

  “Come on in boy, sit on down
  And tell me ’bout yourself
  So you like my daughter, do you now?
  Yeah we think she’s something else
  She’s her daddy’s girl her mama’s world
  She deserves respect, that’s what she’ll get, ain’t it son?
  Now y’all run along and have some fun
  I’ll see you when you get back
  Bet I’ll be up all night
  Still cleaning this … ”

  … from Billy Ray Cyrus and Miley Cyrus’ “Ready, Set, Don’t Go”:

  “She’s gotta do, what she’s gotta do
  And I’ve got to like it or not
  She’s got dreams too big for this town
  And she needs to give them a shot
  Wherever they are”

  Open up my bank account and ship all my money to Casey Beathard. The guy is a genius.

  I’ve been listening to these crappy lyrics from James McMurtry’s 2008 album “Just Us Kids.”

  … from the song “Hurricane Party.”

  “Candles flickered on the back bar
  The building was shakin’ from the wind
  I bought a whiskey for the gypsy
  And she turned my leather back into skin
  Just a fleeting sense
  Of that rare suspense
  I once thought made the world go ’round

  Some insurance man biker is yelling out for one more beer
  But a part-time pirate just can’t get much respect around here
  We got our problems too man
  We’ll get to you in just a minute
  Sit your drunk ass down
  Yeah there’s no one to talk to
  When the lines go down”

• 87 FunGus // Nov 22, 2008 at 8:31 am

  Nice stuff, JD.

  Just don’t go around singing them in public… the suits’ll take you down!

• 88 donnie // Nov 23, 2008 at 8:55 am

  uh oh, here we go, again.

• 89 Clusteruc#k to the poor house // Nov 23, 2008 at 11:17 am

  Ever since BMI came and swept gigs dry, when I walk into businesses in Siskiyou county I don’t hear any background mood music in any stores or any cafes. Wow its so sad! Thank You all of you sell outs! Maybe BMI will loose their asses in the stock market and they will join the cluster!

• 90 Jerry Bailey // Nov 24, 2008 at 2:26 pm

  Dear Clusteruc#k –

  BMI doesn’t trade stock on any market and is not directly affected by changes in the market. BMI doesn’t pay dividends to any stockholders, either. Sorry to disappoint you.

  Dear FunGus –
  A songwriter has the exclusive right to perform his/her songs anywhere. The “suits” cannot “take you down” for singing your songs. In fact, BMI doesn’t even have a music license to offer songwriters, unless they own the establishment where the works of others are played without permission.

  If stores or cafes want to play background or mood music, there are a number of commercial music services which are licensed to provide such music in businesses. They provide a wide range of music, and it doesn’t cost a whole lot. And there’s always radio. No additional BMI or ASCAP license is required, since the CMS has already paid that.

  Great songs do add a lot to the ambiance of a business. That’s why songwriters and composers expect to get paid for public performances (recorded or live) of their work.

  Jerry

• 91 donnie // Nov 24, 2008 at 2:54 pm

  “In fact, BMI doesn’t even have a music license to offer songwriters, unless they own the establishment where the works of others are played without permission.”

  jerry, i’m not sure what this means? you don’t have agreements with songwriters, unless they own a venue?

• 92 Jerry Bailey // Nov 24, 2008 at 4:12 pm

  Donnie –
  Sorry I confused you. We do have agreements with songwriters to represent the public performances of their music — that is, to collect their royalties and distribute to them. There is no charge to songwriters for this agreement. BMI has about 300,000 songwriters and composers under such agreements, along with about 75,000 publishers. We don’t require songwriters to have a license to perfom their own music, and we don’t have such a license that we can offer them. If a songwriter were to own a venue such as a bar or club where songs belonging to others are performed, that songwriter, like any other business owner, would need a BMI music agreement to cover those songs which he doesn’t own.

  BMI licenses the venues, not the songwriters. Under copyright law, anyone involved in the performance of music (recorded or live) could be held responsible, but in practice, only the venue is required to be licensed.

  BMI is exploring ways to pay royalties to songwriters who don’t have radio, television or major concert tours. Most BMI revenue comes from those sources, so those songwriters receive most of the royalties at present. Writers who play only small live venues don’t receive muich at present because the collective revenue from these venues is very small, and there are so many songwriters at this tier of their career. Also, under most scenerios, tracking the music in such small venues would cost more than the revenue collected.

  Stay tuned. Recently, however, there have been some suggestions put forth which may make it possible to improve this situation for songwriters who play only small venues. If we can find a viable way to make it work, we’ll do it.

  Also, we now have new technology to identify brief pieces of music in commercials, jingles and themes played on radio and TV and hope to pay those songwriters more accurately in the near future. We recently announced royalty distributions tied directly to music performed in NFL and NHL stadiums and arenas. We can identify that music now, whereas, in the past, royalties from those sources was distributed according to radio airplay of songwriters. For some time, we have been able to distribute on the songs played on web sites, digital jukeboxes, and commerical music services. Royalty distributions are increasingly becoming more accurate for everyone, and more writers are able to share in the distributions.

  Jerry

• 93 Tom // Jan 15, 2009 at 3:54 pm

  It seems to me that this is pretty over the top. I am a painter and if I want to paint something or someone I can do it. I can paint anyone – celebrity, politician – anyone – and there’s nothing anyone can do about. I can paint and sell a painting of Tom Petty if I want. Nothing anyone can do about that. Images of famous people are out in the world and fair game to any artist that wishes to create art based on them. I can’t, however, make ‘multiples’ of someones image, for sale, without their permission. A person automatically owns the rights to their own image – and although I can create a piece of art work from anyones image (and sell it if I want), I can’t REPRODUCE it for profit. No one can say “you don’t have a right to use someones property without permission”. Although your image is your ‘property’, I can paint it, draw it or sculpt it. I am an artist and free to paint what I want. It is when I wish to reproduce your image for profit that licensing comes into play.
  A song is out there in the world, once released to the general public, just as is an image. If I have a song in my head or heart or wherever, and I want to sing it or play it on the guitar, I should be able to do that. If I want to record someone elses song and sell the recordings, I should get permission and pay a royalty. If I want to sing that song on a streetcorner, in my car, the park, a coffeehouse, a church or school I should be able to do that, as there isn’t any money involved. The song is free to live in the world anywhere but in America. People all over the world are singing and playing Americas songs. But not in America, thanks to BMI and ASCAP. I’ve grown up with Bob Dylan’s songs and used to enjoy playing them with my friends. Never made any money doing it, they were songs in my heart and I could sing them if I wanted to. Don’t think Bob Dylan would mind, honestly.
  Now an industry that can say that a small business in a town of 3500 people should have to pay the same ‘tax’, ‘license fees’ or whatever you care to call it as a similar business in New York City or Las Vegas is an agency with it’s head in it’s ass and no grasp of reality.
  I strongly urge Americans to boycott ASCAP and BMI artists altogether, since they are letting their agents remove the music we’ve supported and loved all our lives from our lives.

• 94 donnie // Jan 15, 2009 at 4:17 pm

  thanks tom,

  post this to the new list, please.

  yes, we are at it again.

  like some bad drug. or better, some idiotic commercial tune stuck in our heads (for which we continuously pay a consciousness tax).

  i think we should be able charge rent for the invasion of our consciousness by such commercial junk.

• 95 LarZ // Jan 16, 2009 at 9:49 am

  Hey Jerry! Reading this post? Care to join us in the newest discussion regarding the CSM article?

  What is BMI doing for small venues and emerging performers, Jerry?

  L

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