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Tuesday, October 10, 2006

I just called to say I'm suing you

And the wind cries "lawsuit."

Comments (16)

It appears that Imbibe is just an assumed business name of the owner, not a business entity that limits personal liability. Doh!

So when a club has a band that plays cover tunes, they have to pay royalties to the record company that owns the copyrights? Is this new?
That doesnt make any sense....and how many bands start by playing other groups music?

The freakin record industry is out of control...

I for one am not suprised. When I consider the Napster situation and other downloading lawsuits (kids and grannies being the targets...), going after start up bands in small out of the way places is all part of the scheme.

but at the same time, these are the same people that have restaurants pay royalites for haveing a radio on whilst people eat...

Please don't tell the record industry, but I'm pretty sure I was whistling CCR's "Lodi' the other day while taking out the recycling. And then yesterday I sang "Chimes of Freedom" to my dog for about 30 seconds. If anyone finds out about this, I'm in serious trouble.

Shouldn't it be the band that pays the royalties? After all, the club owner can't control what gets played - right?

I remember seeing ads about a year and a half ago for the job of going around to clubs and getting evidence of bands doing "covers."

Nice restaurant he has there. It'd be a shame if something were to happen to it.

Seriously, though, I'm not sure what to think of this. Is it a protection racket, or is it just extortion?

Under US copyright law, authors and publishers are entitled to performance royalties when their intellectual property (songs) are used in a commercial enterprise. This has been settled law for a long, long time. Most songwriters and publishers use the big, established collective organizations BMI and ASCAP to protect their rights. These folks monitor commercial establishments to ensure compliance with the law. Radio stations, tv stations, locations with jukeboxes, live music clubs, etc., etc. typically make arrangements with BMI and ASCAP to pay an annual fee that varies based on what they play and in what circumstances.

Simply using someone else's property to make money without permission or payment would be kind of like theft, wouldn't it?

Songwriters' royalty rights are protected by longstanding US copyright law; BMI and ASCAP represent those songwriters. If a business - tv, radio, clubs, etc. - makes money from performance of other's property, aren't the property owners entitled to compensation? Clubs with limited use of copyrighted material should pay less, of course, but the only question left is - how much?

It's ironic that YouTube, a business built on copyright piracy, just sold for $1.65 billion, while the copyright police are going to put a little bar in Portland out of business over a couple of cover songs.

Songwriter, I believe you are mistaken to equate a radio station with a restaurant.

The suggestion that they both "make money from performance of other's property" is akin to saying that all purveyors of chocolate chip cookies should pay royalties to Famous Amos, Nestle, or Mrs. Fields.

But they're not using the Famous Amos or Nestle recipes (you might protest)....No they're not (just as the cover bands aren't buying sheet music), but the cookies would never have become so popular without the efforts of Famous Amos, Nestle, or Mrs. Fields.

If your cookies contain flour, eggs, sugar, butter, and semi-sweet chocolate, then you need to starting kicking up to the Chocolate Chip Cookie Kings. Or you can kiss your cookies goodbye, songwriter.

I'm not arguing that rightsholders are not due compenstion. But contrast these actual lost fees:

"Because his place features local musicians and covers are rare, he didn't think he had to pay the musicians and publishers group an estimated $2,000 to cover performances of copyrighted tunes."

...with this attempt at damage recovery:

"Now they're suing Dorr for copyright infringement - and they're seeking payment of between $750 and $30,000 for each song, along with attorney fees."

How is this a reasonable amount to seek?

Tell me, will the majority of this suits' proceeds go to the original artists, to industry middlemen, or to lawyers? How are artists served by shutting down a venue mainly used for live performance of original work? Would the industry drop the suit if the venue owner paid $1000 each directly to the original songwriters? Are they going to recover money from the cover band as well?

Don't try to pretend that this suit is about paying some poor starving songwriter. (Artists get pennies on the dollar from the fees, let alone the suit.) This is about maintaining industry power and control over a vast flow of money through the tactics of fear.

Current US copyright law concentrates the natural broad flow of music money into a tight stream that can be exploited like salmon in a fish ladder... and you'll never find a sea lion in favor of dam removal. The salmon are starting to wise up, so the industry has to keep their other prey in line.

No matter how stupid or counterproductive, the law is what it is. So for his one mistake, this venue owner will have his head stuck on a pike in the town square as a warning to others: Pay up, or you'll be next. They're going to destroy the venue in order to save it.



BMI & ASCAP are nominally non-profit associations and most of their ordinary (uncontested) collections pass through to the copyright holders. They can't sit in every club every night to chart what gets played, so they sample on part of a night and extrapolate (thus the claim for only a few specified and well known tunes). More sophisticated licensee's maintain logs of material used/played, in part to determine the allocation of royalties.

A lawsuit is far from the first step any copyright holder wants to take to enforce their rights, but without that potential, no-one would play along. Again, the only real question is how much is fair given ALL of the facts. What we are missing here is the rest of the story.

Likely scenario: after ASCAP's visit, clubowner is approached once or twice about a nominal payment that virtually every live music establishment makes. The fees are pretty standard and are based on size, number of nights, type of music, etc., and can be negotiated within those parameters. Club owner figures he can avoid payment by claiming that no copyrighted material is performed. Turns out that's not true (rarely, if ever, is). Clubowner digs in his heels and figures they'll go away rather than litigate. That's not true either. Rather than settling for some reasonable and modest amount broken into manageable quarterly payments, the clubowner bought a lawsuit. I'm sure he could still settle it for much less than their claim, but his options shrank as things escalated and ASCAP's costs increased.

They can't sit in every club every night to chart what gets played, so they sample on part of a night and extrapolate [...]

And do they do this in a statistically valid way? One sample (which is what's reported here: part of one band's set on one night) is insufficient data from which to make any reliable or accurate extrapolation.

"[...] but without that potential, no-one would play along."

As I said, the tactics of fear. Again, compare:

A broken kneecap is far from the first step any mafia tough wants to take to enforce their control over [a service], but without that potential, no-one would play along.

One business model is enshrined in law and the other isn't, but (with the substitution of crowbars for lawsuits) it can be seen that they use basically the same might-makes-right methods.

That said, I realize that these are honest people doing an honest day's work in the belief that they're helping artists and doing what's right. But the same pobably goes for the venue owner.

My complaint with the industry is threefold: One, I think the apparently poor sampling and apparently strongarm tactics apparently used in this case are unfair and counterproductive. Two, I think the cut they give artists is pathetically small. Three, US copyright law has grown far more restrictive than the founders' intent. The Constitutional "limited times" provision has no more practical meaning because Congress sold the public's interest to folks with money. Again.

Combined, these complaints make my sympathy for the record industry very thin indeed.

These are the same jokers who hire people to illegally hack into people's home computers to see if they might have a copied song on there, and delete them.

They even tried to get authorization for said hacking attached to an anti-terrorism bill.,2100,47552,00.html

The music industry has been leveled by the PC. What's happening now is like a scene out of "Beyond the Thunderdome."


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