All Shook Down

“The people who create music, the songwriters, are smaller businessmen than the coffee-shop owners,” said ASCAP’s Laurie Hughes from her Nashville office. Hughes, ASCAP’s director of Business Affairs, was glad to explain what has been unambiguous in copyright law for ninety-four years: “When their music is used by someone else, the songwriter or the creator or the copyright holder has the right to authorize that use.” In 1976, the federal copyright act of 1909 was updated, and performance rights were retained and extended to the use of digital audio.

Ninety years before Napster introduced its “system of
notation,” the money to be made was in printing and selling the sheet music for popular showtunes from traveling plays like Robin Hood or Uncle Tom’s Cabin. In 1913 ASCAP was formed. It negotiated songwriter royalties based on the rather easily monitored sales. Before photocopiers, let alone MP3s, it was easy enough to track the sales of sheet music, and there were few options for bootleggers. This is why your high school band director always looked uncomfortable handing out photocopied sheets to the last three trumpets in the section when the packet he ordered came up short. If he had ten trumpets, he was supposed to pay for ten sheets or make the players share.

BMI formed in 1940 to pick up market share in alternative music, like country, neglected by ASCAP. SESAC formed in 1930, and while it holds only about two percent of the market, it does represent Bob Dylan, one of the few songwriters whose work tends to improve in the hands of other musicians and thus is widely covered. ASCAP has adapted to the twenty-first century by soliciting license fees from performance venues such as body-building contests, campgrounds, Jewish community centers, marine vessels with overnight accommodations for passengers, helicopters, polo matches, tractor pulls, volleyball (indoor and outdoor), and zoos and aquariums owned and operated by nonprofit organizations. And your local Dunn Bros locations, all of whom franchiser Skip Fay advises to pay up should the PROs come calling. Fay, who himself owns three Dunn Bros shops, says he has kept the wolf from the door with a subscription to a piped-in service that includes blanket coverage with the PROs.

But even with history and law on their side, the PROs have yet to shake the shakedown reputation, which itself goes pretty far back. Local fingerpicker Cooker John Sagner recalls being approached by ASCAP to spy on clubs in the late seventies to bust them for permitting cover tunes. “They wanted me to be an undercover operative,” Sagner told The Rake. “I would go to bars and they would give me thirty dollars and a bar tab and I would write down the set lists.” Sagner declined what might have been the best deal he would ever get from a PRO. He has since registered his copyrights with BMI, “But I’ve never seen a dime from these outfits,” he lamented.

ASCAP’s tactics are legendary, too, igniting a public-relations nightmare seven years ago when license demands went out to a mailing list that included Girl Scout camps. The Wall Street Journal published a story depicting Girl Scouts at Diablo Day Camp in Oakland, California, trying to dance the Macarena in silence so as not to violate copyright law. The story, picked up by newspapers all over the country, including the Star Tribune, set off a firestorm of angry editorials. A contrite ASCAP soon refunded the fees to most of the camps that had paid.