All Shook Down

“Radio music logging in Europe is not as thorough as you may think,” countered BMI’s Jerry Bailey, adding that the European reporting system is just not a match for the vast American market of more than 10,000 stations. Bailey also pointed out that the costs involved for that kind of reporting would come out of the royalty pot, leaving less to distribute. That BMI keeps its distribution pot at eighty-four percent of revenue is a point of pride Bailey noted several times in our discussions.

But even if the surveys were fine for the radio market, could they ever come close to approximating the types and amount of music played in cafés and clubs? Consider Lyn-Lake institution Dulono’s, where more bluegrass is performed in one weekend than the entire metro radio market broadcasts in a year. And consider that the radio-unfriendly alt flavor of most Minneapolis rock means that any fee collected from the major downtown and West Bank clubs will likely never reach the average performer. One St. Paul coffee-shop owner said that the license fees are more per year than he budgets for the musicians themselves, most of whom play original material or traditional folk and bluegrass that’s in the public domain. Jerry Bailey acknowledges this gap: “If a local band plays only clubs and receives no radio or television performances, their share of revenue from an individual club for several self-penned songs would be less than a dollar. But to do thousands of individual business logs to pick up those performances is not cost-effective.” This, of course, impeaches the merit of licensing these ve
nues at all. Perhaps that’s why BMI has not actually litigated a case in the area since 1994.

But reports of ASCAP’s aggression of late may indicate that the PROs are ready to haul some outliers in front of the judge, perhaps to make an instructive example out of someone. “ASCAP is very aggressive, I can tell you that,” said Mick Spence about its approach with coffee shops and clubs. Spence, a Minneapolis attorney specializing in entertainment and copyright law, says that clients who find themselves on the business end of ASCAP’s stick feel extorted indeed. “It is a hassle. The license fee is an insurance policy against litigation. I advise my clients to pay. The economics of getting a lawyer involved after the fact just don’t balance against the cost of the license.”

Spence also explained a relatively recent development in performance rights called the Sonny Bono Copyright Extension Act, which took effect in 1998 and may explain why ASCAP seems more active in recent years. It not only granted Disney a total of ninety-five exclusive years with Mickey Mouse, but also reduced the square footage at which a business can be judged a performance venue. The Bono Extension instantly multiplied the targets ASCAP could approach, with the startup and failure rates of smaller coffee shops and clubs rotating the supply constantly. But with so many owners revolting and refusing to pay, ASCAP may have to make an example out of some to keep the rest softened up. Of course, many with the cojones for disobedience don’t have the pockets to defend themselves. “They could put me out of business tomorrow,” admitted the owner of a Minneapolis club where several acts of national stature launched their careers. Spence points out that venues have the option of just paying up or avoiding the ASCAP catalog. But as some shops drop music altogether and others face litigation, the net result of venue licensing might end up being fewer places for artists to get started. Ultimately, even if they have the right to do so, is ASCAP stunting the next crop of copyrights they’re in the business of protecting? I asked Laurie Hughes.

“I don’t know if I agree with that,” she said. “If a club hires musicians who play copyrighted music without permission, they are stunting the growth of those songwriters’ careers. If a club is playing all original music, they don’t need a license. Copyright holders don’t need permission to play their own works.” Though as Richard Phillips discovered, the PROs don’t hasten to point that out when they try to sell a license.

And even if ASCAP is getting hot to litigate, Mick Spence counsels caution with the “all original” approach: “Does it make sense to sit there and cross your fingers that the guy you hired won’t play a Dylan cover?” Probably not, in this town.