Cover Bands, Coffee, and Copyright

Katherine Mangu-Ward | July 9, 2007

When the recording industry isn't suing 13-year-olds, they're sending out the dogs on small coffee shop owners in Florida:

Music industry giant ASCAP started calling and sending letters saying East Coast Coffee & Tea was in violation of copyright laws. The fee to continue the music was $400 a year.

"At the time, the shop was losing money, so we had to break it up into payments," said Laurie Hall. But the Halls paid, and the music continued.

Six months later, other music copyright companies began calling the Halls and demanding money. Most days there would be three or four phone calls from each company, Hall said. Finally, unable to afford the fees, she had to call most of her musicians -- those who did not play original music -- and tell them they would not be allowed to continue performing.

This aggressive -- but legal -- posture being taken by music licensing companies has the potential to unplug live music in many restaurants, bars and coffee shops in Brevard County.

And some bonus hearsay:

Lou Andrus, owner of the popular beachside nightclub Lou's Blues...said a friend of his who owned a restaurant that did not feature music was contacted by a company looking to charge him because it owned the rights to a Hank Williams Jr. song, "Are You Ready for Some Football?" The song preceded every "Monday Night Football" telecast, which the restaurant carried on its televisions.

He said his friend simply chose to turn the volume down when the song came on.

More on on the music copyright wars here and here.

Comments

|7.9.07 @ 5:01PM|#

That was the original intent of copyright law, to make less music. Right? To hinder the flow of information? I can plainly see how cover bands, if allowed to continue, could cripple the music industry.

thoreau|7.9.07 @ 5:02PM|#

Forget about the legal issues for a moment. In the article it says that many places are asking musicians to only play their own original music.

Am I the only one who sees how this might backfire a bit on the record companies?

thoreau|7.9.07 @ 5:03PM|#

One other thing: I suspect that some of these coffee shops are getting targeted by scam artists.

One guy called and said I had to pay him if I played any gospel music at all. It's really a mess."

Is there actually a company that owns the copyrights on the vast majority of American gospel music? I doubt it, but I'm open to being proven wrong.

Lupito41|7.9.07 @ 5:04PM|#

How do you ridicule an outfit that named itself AssCap?

|7.9.07 @ 5:04PM|#

Reason #2,495 to do away with copyright.

|7.9.07 @ 5:13PM|#

Wait a minute...doesn't the NFL pay for the rights to that song? I mean, the NFL is also responsible for banning churches from showing the super bowl, but that does seem like double-dipping on the part of the company in the second anecdote.

|7.9.07 @ 5:14PM|#

Thoreau: I'd love it if this spurred more original music. But sometimes that cover of Gary Numan's "Down In The Park" three-quarters of the way through the set just sets a perfect mood.

|7.9.07 @ 5:17PM|#

In the case of the coffee shop owners, couldn't they just claim that the performers are unsolicited musicians who just happen to set up their gig within the coffee shop?

|7.9.07 @ 5:21PM|#

My friends and I usually chose to mute the Monday Night Football theme, too.

Sean|7.9.07 @ 5:34PM|#

Eh, couldn't they just have some kooky guy with long curly hair and glasses sing them... they'd be covered under parody, right?

wsdave|7.9.07 @ 5:35PM|#

"was contacted by a company looking to charge him because it owned the rights to a Hank Williams Jr. song, "Are You Ready for Some Football?" The song preceded every "Monday Night Football" telecast, which the restaurant carried on its televisions.

He said his friend simply chose to turn the volume down when the song came on."

COOL!!! How long before EVERY comercial gets turned down on the off chance that there will be music in it. Even better, the comercials that ADVERTISE music...

Jozef|7.9.07 @ 5:48PM|#

Given that I listen to very little radio (pretty much only Car Talk and Wait Wait Don't Tell Me), and the TV music channels I'm able to watch don't play any music anymore, live performances in pubs and cafes have been my only source of new music. I guess now I'll be able to only purchase new, original music burned onto a bunch of CDs by one of the band members, and nothing else.

(Here's some good news I realized only recently, though: the European 50 years copyright on stereo recordings of classical music began expiring about three years ago -> lots of great music in public domain.)

|7.9.07 @ 5:48PM|#

So, you have no respect for intellectual property? You rant and rave against eiment domain, but if it's just intellectual property who cares?

|7.9.07 @ 5:49PM|#

Once they get the census records, I'm sure we can all expect bills in the mail demanding we pay royalties for each member in our household per year they've been alive on the off chance we might have sung "Happy Birthday" to them yearly.

Bloody Nazis.

highnumber|7.9.07 @ 6:05PM|#

Bob,

I don't want to eliminate copyrights, but I don't like the way that the laws, thanks mostly to the Mouse®, have changed and that soon we may end up with nothing ever entering the public domain again.

What do you think about how intellectual properties are handled?

|7.9.07 @ 6:21PM|#

As a DJ, I get asked about this all the time. I don't know the exact answers, but many clubs and restaurants that have DJ's come in and spin already pay the stupid ASCAP fees. I wonder if many of the underground dance music labels that I spin even care if I give them a cut of my profits or not.

Robert|7.9.07 @ 6:29PM|#

"Is there actually a company that owns the copyrights on the vast majority of American gospel music?"

Wouldn't that be...God?

|7.9.07 @ 7:16PM|#

Stuff like this is what allows people to rationalize ripping off the large media companies with illegal file sharing.

|7.9.07 @ 7:23PM|#

highnumber,

I'm curious as well about how hit&runners respond to intellectual property. The artists and record companies have a contractual agreement. They are the sole owners. It's seems that if people didn't like how they were doing things they could start their own record companies, write their own songs, etc. and compete in the market place. This has been tried many ties throughout the years yet the old companies are still in control. Seems the free market has spoken.

*As I've brought up in many discussions on this board it's not free markets that are going to change the way things are done, it's going to be technology- the whole Prince giving his records away on the intarwebs and still pulling in huge crowds for live shows deal.

Another example: as the cost of manufacturing goods drops to near zero(minus raw materials- the cost of these will go down as well except for rare materials) how will people support themselves? I think we will have to create a huge welfare system- of course I think we will be able to easily afford it. Machines making machines to do work for us will create incredible wealth... IMO.

|7.9.07 @ 7:31PM|#

There are problems with how ASCAP/BMI operate, and in a way it's worse than the RIAA because it's so entrenched and below the radar- most people have no idea how the system works, and there is a mountain of legal precedence that prevents any effort to make the process of collecting and distributing the massive amounts of money involved more transparent.

http://www.woodpecker.com/writing/essays/royalty-politics.html

Dave W.|7.9.07 @ 7:46PM|#

They are the sole owners. It's seems that if people didn't like how they were doing things they could start their own record companies, write their own songs, etc. and compete in the market place. This has been tried many ties throughout the years yet the old companies are still in control. Seems the free market has spoken.

Not so fast. I have recently set up a streaming radio loop of unsigned musical artists:

http://www.farceswannamo.com:8000/listen.pls

Don't knock it til you've tried it. Actually I was glad this came up today because I have been meaning to ask Fyodor if it is okay that he is in there.

jdd|7.9.07 @ 7:59PM|#

Contractual agreement or not, but for a legal monopoly, those contracts wouldn't apply to society at large. IP has been extended much too far in our society. Micky Mouse is never going to be in the public domain. Disney will bribe our legislators from now until the Sun swallows the Earth to retain its rights. If it actually lost that protection, Disney might have an incentive, to, oh, I don't know, innovate...

Common ethics should prevent ASCAP from enforcing this stuff. No human being should agree to send those letters. Sadly, some people do. They are human scum. In my view, someone who choses to undertake that sort of activity has, just as anyone working for the IRS in collections, consented to an asswhipping from anyone at anytime.

|7.9.07 @ 8:27PM|#

This reminds me of my absolute favorite band in college - Jump, Little Children. They had this fabulous song called "Pink Lemonade" that was pretty much original, but they'd stuck in "You Are My Sunshine" into the chorus, in a sort of "Mel Torme how many songs can he sing to the tune of New York, New York" kind of way. It was fabulous, but they could never record it, because the owners of the song are kind of evil about allowing its use. It just sort of sucks that a great song couldn't be anything other than live because it riffed on another song. Now I wonder if they were still playing it, they'd be fined for even using it live?

It simply is the idea that works put out into the public in some way do belong to the public. J.D. Salinger wants no one to ever read anything about him or his early works, but it's kind of too late. They were published. If he really wants something to keep complete control over something, he shouldn't publish it (I guess that's why we keep hearing about a new book for years now. it's private!)

I think that's what we complain about with these seeming unreasonable applications of IP. Just because you own something and should be paid whenever it's used doesn't mean you have total control of it.

|7.9.07 @ 8:31PM|#

"thoreau" writes: Am I the only one who sees how this might backfire a bit on the record companies?

Yes, I think you're the only one who sees that. Because these organizations are not record companies. They represent songwriters -- songwriters who want to be paid for their work. Here they are trying to obtain payments that currently are not being obtained. If that results in musicians "playing their own original music," then it simply means that ... payments won't be obtained. Nothing changes. There's no "backfire."

U.S. law allows songwriters to collect fees for public performances of their work. These are public performances. The agencies representing these songwriters is doing its job. If you don't like that this scenario exists, then lobby to change this law -- a law that is, incidentally, not remotely new or Disney-fied.

|7.9.07 @ 8:54PM|#

One further point:

I'm sure most of you would agree that the Main Street Gazette would be justified going after a coffee shop that was reproducing copies of the paper each day to place on the counter. If that's the case, I'm not sure why you're so livid about a songwriter going after a coffee shop that is reproducing copies of his work to place on the stage.

In both cases, a business is making unlicensed use of others' work for its own benefit.

Oh, and one further, further point: There's nothing new about these "look how they're attacking small establishments!" faux-outrage stories. Of course the targeted proprieters are gonna wail and moan to the press, but it's not like this is some new phenomenon. These stories are all over the place, all the time. I'm surprised so many, including the original poster, are treating this story as some novel situation.

While I'm sure the pace of efforts by ASCAP, BMI, etc., ebb and flow like anything else, this Florida article doesn't represent some horrific new "crackdown." And it certainly doesn't represent yet another development in the Horrible Fascist Copyright Crusade Bought And Paid For By Disney that every Internet-oriented geek suddenly became an expert about after the courts shut down Napster and took away their free music.

SIV|7.9.07 @ 9:04PM|#

U.S. law allows songwriters to collect fees for public performances of their work

The "songwriter" is not allowed to collect squat unless he is also the rightsholder.

The rightsholder or his represenative may collect the fees under US law.

SIV|7.9.07 @ 9:11PM|#

I'm sure most of you would agree that the Main Street Gazette would be justified going after a coffee shop that was reproducing copies of the paper each day to place on the counter.

Bad Analogy- the Newspaper doesn't get a cut every time a new customer glances at the same copy of the paper like the music publishing industry gets a cut every time someone plays the same record on the jukebox.

|7.9.07 @ 9:33PM|#

I agree with Thoreau. There are lots of cases where you hear a song covered and go buy the original. I saw Pete Yorn last month and he covered Warren Zevon's "Splendid Isolation" and I went and bought the Zevon version as a result. I had never heard the song before. But, the music industry is so interested in the quick buck that it is slowly killing itself. Fuck em. I hope all the labels go broke.

|7.9.07 @ 9:41PM|#

The "songwriter" is not allowed to collect squat unless he is also the rightsholder. The rightsholder or his represenative may collect the fees under US law.

This is true, obviously, but it's a distinction without a difference. Rare is the case in which a songwriter is not a rightsholder in his compositions. I think you're confusing the roles of songwriters and publishers, or publishers and record companies, or mechanical rights and performance rights, or possibly all of the above.

In other words, "songwriter" is a perfectly appropriate word for this discussion.

|7.9.07 @ 9:48PM|#

Bad Analogy- the Newspaper doesn't get a cut every time a new customer glances at the same copy of the paper like the music publishing industry gets a cut every time someone plays the same record on the jukebox.

You just took my analogy, warped it and its context, then called it "bad." Find me the newspaper publisher who welcomes the idea of a coffee shop reproducing and distributing copies of his work with no compensation, and I will send you $5 over the intarwebs. Make it $10.

SIV|7.9.07 @ 10:18PM|#

Newspapers generally "give away" their content via the tubes and they never whine about multiple readers of a single dead tree copy of the paper. I will not begrudge the rightsholder's cut of sheet music sales of a song until about 7 years after publication.

M|7.9.07 @ 10:21PM|#

Newspapers carry ads. I haven't a clue about IP issues, but I have noticed that newspapers carry ads.

SIV|7.9.07 @ 11:03PM|#

Player Piano rolls..... yeah the rightsholding songwriter deserves a cut from those as well.

|7.9.07 @ 11:06PM|#

Lou Andrus, owner of the popular beachside nightclub Lou's Blues...said a friend of his who owned a restaurant that did not feature music was contacted by a company looking to charge him because it owned the rights to a Hank Williams Jr. song, "Are You Ready for Some Football?" The song preceded every "Monday Night Football" telecast, which the restaurant carried on its televisions. He said his friend simply chose to turn the volume down when the song came on.

My "urban legend" meter just jumped up to 11.

SIV|7.9.07 @ 11:08PM|#

So who again is getting property stolen every time people sing an unlicensed "cover" of Happy Birthday in public?

|7.9.07 @ 11:46PM|#

""""My "urban legend" meter just jumped up to 11."""

I think so too.

My problem with this conversation is that the songwriter seems to get screwed most of the time. Song writing is their buisness. What's wrong with charging a fee for a product? Isn't that pro-buisness?

|7.9.07 @ 11:54PM|#

Wow, Tom sure is a dick. I guess you'd have to be blind to how record companies fleece their artists, thereby making them desperate for these type of royalties, pushing AssCap and SeeSack to ugly extremes. But why bother when you can just pretend that IP serves no purpose other than money-making, like widgets? And since we're on the subject of Tom being disingenuous, why don't we highlight the fact that if a bar thought a certain written article was particularly relevant to its mission, it could reproduce a newspaper article under the fair use doctrine? Oh yeah, if we were serious about making a point, we might highlight that the bar isn't reproducing the paper, somebody who comes in periodically to entertain is. That person may or may not do something copyrighted.

If we're trying to be reasonable, not like the Tom's of the world, we might conclude that a one-time annual payment should suffice. The day that AssCap or SeeSack refunds money because nobody actually played a cover will be the day that I give Tom's point of view any respect.

But hey, the market has spoken, and CD sales are way, way up, and the record companies aren't even marketing sex to make up for crappy music at all. Songwriters aren't desperate because their trade is in the dark ages, and everything is fine.

|7.10.07 @ 12:05AM|#

I think the point being missed is that when the U2 covers Helter Skelter in front of 50,000 people in an arena, they are definitely profiting from it and Michael Jackson (he owns the rights still?) should be compensated. When that hippie guy with an acoustic guitar covers an Indogo Girls song at the coffee shop in front of 3 people, they hopefully will run screaming (but inevitably, one of them will use the coffee shops free Wi-Fi to order the CD online). Thus even the angry lesbians benefit from this scenario.

|7.10.07 @ 12:10AM|#

Please substitute the word "dick" with something less vulgar in my last post. Tom's just misguided, not a bad person.

|7.10.07 @ 1:15AM|#

LOL at non-consequentialists reflexively extending the term "stealing". Extend the same "principle" to jokes, recipes, and sexual techniques... and watch us all go fucking insane.

Guys, this is an engineering problem. How to get enough of certain kinds of good mind-work done without overly hampering the overall meme stream. It's not an easy problem, and it's going to get harder, but outdated categorical ethics are not going to help.

Dave W.|7.10.07 @ 8:30AM|#

Guys, this is an engineering problem. How to get enough of certain kinds of good mind-work done without overly hampering the overall meme stream. It's not an easy problem

Nice phrasing of the fundamental issue! Here is how to do it in the patent area:

http://fedcirpatentcaseblurbs.blogspot.com/2007/07/28-june-07-precedential_04.html

robc|7.10.07 @ 8:45AM|#

So who again is getting property stolen every time people sing an unlicensed "cover" of Happy Birthday in public?

Mildred J. Hill and Patty Smith Hill.

|7.10.07 @ 9:12AM|#

Tom, I just read your idiotic claim that "songwriter" is a perfectly good substitute for "rights holder." Beatles anybody?

|7.10.07 @ 9:28AM|#

Not to mention producers that strongarm their way to songwriting credits. Then there is the peculiar story of Rob Thomas and "3 a.m." - suffice to say he joined a band that already played the song, then stole it.

Russ 2000|7.10.07 @ 9:32AM|#

a law that is, incidentally, not remotely new or Disney-fied.

That is so wrong it's laughable. Disney has been one of the strongest lobbyists toward getting copyright lengths extended, essentially into perpetuity.

|7.10.07 @ 9:44AM|#

No, actually, you were right: I'm more of a dick than misguided.

I don't even know where to start with your poorly argued, flimsy-premised posts, but this might well as be it:

Tom, I just read your idiotic claim that "songwriter" is a perfectly good substitute for "rights holder." Beatles anybody?

If by "Beatles" you mean the compositions of Lennon-McCartney, and if you think you're making a point about Michael Jackson and rights, then you're simply revealing more ignorance. Michael Jackson owns the publishing stake in the Lennon-McCartney compositions. McCartney and the Lennon estate have never lost their stake in those songs.

When BMI collects performance royalties for compositions by Lennon and McCartney, it most certainly is collecting money for Lennon and McCartney.

ed|7.10.07 @ 10:02AM|#

What Tom said. Well put and well reasoned. I can't really add anything, except: "For a magazine called Reason..." etc. etc.

Intellectual property rights at this blog are just below Joe Lieberman on the popularity scale.

|7.10.07 @ 10:07AM|#

There is certainly a case to be made that at times ASCAP has overstepped and pushed the wrong small business or other user. However, the facts remain that when you provide music the people responsible for that music should generate money for their work. This one seems fairly clear cut to me. $400 for a year's worth of music - that would cover almost any form, live, stereo, radio, even most likely the theme song to Monday Night Football ;) - seems a resonable cost to have your performers be allowed to cover almost any material they would like.
There are all sorts of analogies that can be used, but if your business can't cough up less that $40 a month it's probably time to pick another business.

|7.10.07 @ 10:08AM|#

Good start, Tom. Go on. Rob Thomas?

|7.10.07 @ 10:16AM|#

Before people start to think Tom has a point, please note that performance royalties are paid to publishers and songwriters (i.e., copyright holders), all 200% of it.

|7.10.07 @ 10:34AM|#

C'mon, Tom. You still think publishers don't get paid from the live act pool? Let's also move on to how silly and complicated the PROs systems are. Basically, they count seats and make up a number. Since they are competing with each other for biz, they make up bigger numbers. You act like this whole thing is simple and straight forward, which is why you are completely full of it. It is convoluted to the point that most lawyers don't even get it.

|7.10.07 @ 12:07PM|#

Once you putyour intellectual property on paper or tape it becomes physical property. Why should anyone be paid for eternity for something they did one time. To me its only intellectual till you make it into a product then it should fall under all other products guidelines.

How about they try WRITING A NEW SONG!! After all if producers of goods do not come up with new product lines for old ones no longer in favor with buyers they go out of business. Artist made their product and put it out in the public domain once, how many times should they be allowed to get compensated for doing something one time.

Producers of goods have to continue making goods to make money why should musicians or song writers be any different? Keep producing or go broke its simple enough. It should not be oh look I made this song 27 years ago and I should still be profitting off it now!

if music didn't suck so much these days maybe they would make more money. I always have to point out that the Grateful Dead made more money than any touring act year after year. All the while having a special section put aside for people to BOOTLEG ever single last show they played and distribute them freely to others. If this business model doesn't debunk the RIAA ASSCAP etc then I don't know what does. Record companies are the pimps of musicians plain and simple. Their days are numbered as their idea of music now is one that is produced and marketed for the moment.

With the new technologies and availability to record your own records and distribute them the need for record Co.'s is lessening day by day.

If your a true artist then get out there and work a few days a week at least playing your music live since thats where the most money is to be made. Should your live acts not make enough to support you choose another career but don't expect to continue getting paid for your old product. How many times does an artist get paid after selling a painting for the first time? Does he/she continue to get a cut of each sale then after from each purchase when the art changes hands? Nope!

ed|7.10.07 @ 12:46PM|#

Why should anyone be paid for eternity for something they did one time?
They're not.

How about they try WRITING A NEW SONG!!
Right. Most successful songwriters stop after just one.

if music didn't suck so much these days maybe they would make more money.
Uh huh. Music "sucks", therefore artists have no right to their royalties.

How many times does an artist get paid after selling a painting for the first time?
If he's smart and his painting is any good, he can get reproduction rights, for starters. Ever heard of Salvador Dali?

I could go on but it's too much like lecturing a retarded child, and that would be cruel.

|7.10.07 @ 1:06PM|#

I can't even ascribe to some of Dee's opinions. If you make money from something that somebody else created, you should have to split the proceeds with the creator. The devil, as they say, is in the details.

Gray Ghost|7.10.07 @ 6:03PM|#

Many of the problems we're complaining about would go away if Congress would remember the whole "limited times" part of the Constitution and return copyright terms to a pre Copyright Act of 1976 regime: One term of 28 years (-ish), apply for another term of 28 years. Rights revert to the creator after the first term, can't contract around it. Rights are personal property and may be passed to heirs like any other personal property. I'm on the fence whether heirs should be able to take advantage of the right of reversion upon conclusion of the first term.

Yes, this conflicts with Berne's requirement that terms be tied to the life of the creator. I'm not bothered by that, as I don't like many of the features of Berne, their insistence on "moral rights" being one.

Paternalistic? Yes, but judging by some of the bitching from musicians about the penal terms of the contracts they voluntarily signed, some paternalism might be welcome.

This way, the author gets two cracks at profiting from their work, and we the public get many more works in the public domain. Of course, the Mouse hates it, and the Euros are tied to this whole artists' life idea, so it'll never happen. Sigh.

|7.10.07 @ 8:48PM|#

Before people start to think Tom has a point, please note that performance royalties are paid to publishers and songwriters (i.e., copyright holders), all 200% of it.

...

C'mon, Tom. You still think publishers don't get paid from the live act pool?

Nope, I don't "still" think that, because I never thought it in the first place. Nowhere in this thread have I asserted or implied that publishers don't get money from performance rights fees. Of course they do.

I'm starting to think you've been extraordinarily confused by the argument I've been making in this thread -- both the facts and the conclusions.

You act like this whole thing is simple and straight forward, which is why you are completely full of it. It is convoluted to the point that most lawyers don't even get it.

It certainly is convoluted, which was the point implicit in my mocking comment about Internet geeks having become "experts" on the issue in Napster's wake. I'm not pretending this stuff is simple or straightforward, even if I am condensing my arguments into as digestible a form as possible on this general-purpose blog.

|7.10.07 @ 11:09PM|#

Perhaps I have assumed in my arguments that you know about my position on IP issues, which is that copyright is a good thing that is getting out of control. It isn't a fundamental right to get paid for whatever you create, it is a statute-based right that serves a practical purpose. When that practical purpose isn't being served, the protections imposed by congress become a subsidy or a regulation that protects RIAA labels' profits, as well as songwriters and publishers, unreasonably. It comes down to you thinking the system works, and me thinking the system is counter productive.