All Shook Down

Other café proprietors, apparently cowed by the threat of litigation, agreed but would not comment, even anonymously, and asked that their businesses not be named for any purpose in this story. What’s more, many songwriters and musicians who in theory might benefit from performance royalties have found themselves frustrated by the chill that licensing demands have put on live performances at the venues where they make a living. Acoustic legend Harvey Reid has referred to BMI and ASCAP as “shadowy thieves,” and he claims that “there are many stories of store and restaurant owners who had no idea what they were dealing with and actually thought they were being shaken down by the Mafia when ASCAP agents confronted them.”

“I have heard the ‘Mafia’ reference many times,” songwriter and performer Richard Hayes Phillips told The Rake. “One proprietor in Canton, New York, has insisted to me that ASCAP is the Mafia. Certainly their tactics meet the legal definition of extortion as incorporated by RICO,” he said, referring to the famous federal anti-racketeering law. While such claims certainly contain a measure of hyperbole, Phillips did, in fact, lose a job because of threats from BMI. In 2001, by his own account, Phillips was doing well as house musician at Schemmy’s restaurant in Rhinebeck, New York, playing traditional songs in the public domain plus arrangements and originals he had copyrighted himself. But in May of that year, Schemmy’s owner received a letter from BMI serving notice of their rights to license music categories as broad as “Irish” and “South Korean.”

“Whatever music you perform to benefit your business, its public performance requires a license,” wrote Craig Stamm, director of General Licensing for BMI. Phillips wrote Stamm to assert his right to perform music outside the BMI catalog without a license. BMI did not reply. Kim Curthoys, who owned Schemmy’s at the time, confirms that she fired Phillips and went without music rather than wrangle with BMI. Later that year, having sought the intervention of U.S. Rep. John McHugh, Phillips received written confirmation from the U.S. Copyright Office that “If Mr. Phillips is correct that he does not perform songs represented by BMI, and he is correct that Schemmy’s Restaurant does not otherwise publicly perform songs represented by BMI, Schemmy’s need not obtain a BMI license.” But by then Phillips had lost the gig.

I asked BMI spokesman Jerry Bailey if it might not be improper to solicit license fees where none are required, especially if the threat of litigation is implied with the request. Bailey suggests that Phillips and Schemmy’s may have overreacted. “If a business owner is not playing BMI music, he/she has nothing to worry about,” he told The Rake. But Bailey says that’s a big “if,” hinting that many complaints about Mafia-style tactics come from folks who just don’t want to pony up for the copyrighted product they use to benefit their business. “Do you think that many business owners would volunteer to pay songwriters if there were not a copyright law to require it and courts to enforce that law?” asked Bailey. “Remember, all of this is about paying songwriters as they’re lawfully entitled. It’s not an option like whether or not to put parsley on the plates.”

How much does it cost to play music legally? To spin CDs in a coffee shop will cost you $2.15 per year per occupant capacity. Unless you’re like Gigi’s Cafe, whose $107.50 isn’t worth BMI’s time: Then you’ll shell out $271, the set minimum. If the fire marshal lets you squeeze 200 people into your joint and you have live music as well as a CD player, the annual BMI fee is $1,320. (Ten percent of BMI’s $574.2 million in 2002 revenue comes from these two types of licenses.) ASCAP fees tend to be higher. If you don’t want to sleep with the fishes, you can end up paying thousands annually to cover all the copyrights out there, so that BMI, ASCAP, and SESAC can distribute the money to songwriters. Michael Bolton puts it this way on behalf of BMI: “Songwriting royalties put food on the table for years before my first hit as a recording artist. That’s a pretty typical story in this business.” While Bolton’s survival may argue the case against such royalties, BMI also has a shill in Willie Nelson, who says, “More people listen to my songs in restaurants, over radio and TV every day than I perform for in a year. Is it fair to legislate away the songwriter part of my career?” About as fair as skipping income taxes, one might say. But jesting aside, maybe ASCAP says it best.


Posted

in

by

Tags:

Comments

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.