Club Owner Has To Pay $40,000 Because A Cover Band Played 10 Songs
from the yikes dept
In the past, we've covered some of the ridiculous claims that come out when ASCAP goes around suing restaurants, bars and clubs for performing music without securing a license first. The idea that having music playing in a restaurant without a license somehow causes "irreparable injury," seems ridiculous. If anything, having songs played in public places where people can hear them is likely to get those songs more attention, providing more opportunities to make money for the musicians behind the song. In the latest twist on this theme, Stephen writes in to let us know that the former owner of a night club in Vail, Colorado has agreed to pay $40,000 because a cover band performed 10 cover songs at his club, without him paying the required ASCAP fees. Note that the band itself didn't have to pay anything. The thing is, he got off cheap. ASCAP could have tried to charge him up to $30,000 per song. Again, it's unclear how this benefits anyone (other than some lawyers). All it does is make it a lot less likely that venues will want to play songs licensed via ASCAP. It's short-term thinking that destroys long-term value.
Reader Comments (rss)
(Flattened / Threaded)
Ye gads...
....that ridiculous.
Why are they such fools?
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off topic
do you know my wndows mobile 6-powered 'smartphone' can see your "this is for spambots do not use" field? i swear i'm not a bot!
oh and on-topic: cheez, wtf is wrong w/ these record co execs? you'd think they'd suffocate w/ their heads so far up thier asses. but no.
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Comon
I've been perusing techdirt for a while now and thisis the first time i have seen BS like this posted in comments. Pleas dont let the integrity(well....) if the posts go down like this.
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So....
... who fancies a game of "Guess how much the original songwriters will see of that $40,000?"
I'll open with 17 cents.
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Righteous Indignation is Misplaced
This article shows a LOT of short-term thinking on the part of Techdirt: write a catchy (but mis-leading) article in order to get viewers today, at the cost of credibility tomorrow.
Get the law straight: ASCAP has to plead "irreperable injury" under the law of injunctions, it's not that they think their business will be harmed more or less than if songs were played free, rather it's the fact that you can't un-ring the bell (or, in this case, un-play the song).
Get the business straight: it might be best to let some songs be played free, but ASCAP has to enforce their license terms occasionally (and publicly) if they ever intend to enforce their license at all. Always letting every bar, club, arena, radio station, etc play music free might be a fun model, but it's certainly not a business model. You can disagree with the idea of chargging for music, but if they are going to charge for music then they have to occasionally enforce against those who will ignore the law.
Get the business straight (2): Randomly enforcing on a large scale is far more efficient than enforcing every violation for nickels and dimes. ASCAP decided that instead of suing every single bar that plays one song without paying. The litigation costs are immense. Given that a top-tier lawyer bills at $300/hour, I'll bet that ASCAP will lose money on this by the time all is said and done. But, it's a lot less expensive to sue one bar for $30,000 than to sue 100 bars for $3000. See the Law & Econ literature on optimal deterrence to get a more nuanced view on this.
Get the business right (3): Since ASCAP's strategy is to make a very large and public suit occasionally rather than to sue every violator, Techdirt has just played into their strategy by publicizing this suit. Way to go.
In short, Techdirt (again) trades short-term righteous indignation for long-term value. I certainly wouldn't trust my corporate intelligence to a company that doesn't understand optimal deterrence. I reccomend readers similarly think critically before falling into Techdirt's default smug indignation.
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Re: Righteous Indignation is Misplaced
You explaining why ASCAP does what they do does not make it any less odious.
Copyright, Intellectual Property, are outmoded systems. Time to change them.
I choose to ignore them.
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Re: Righteous Indignation is Misplaced
The only reason I can see to sue in this case would be because the club owner possibly made some money off the draw of a larger crowd, other than that who gives a $h!+. Cover bands are cool and shouldn't have to register with some BS agency that polices this sort of thing. Don't you think those people's time is better spent fixing some other broken part of our society rather than being a killjoy for club goers/owners?
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Choose to ignore?
> I choose to ignore them
How brave of you. Truly an act of civil disobediance worthy of a medal.
Too bad simply disagreeing with a law doesn't give you the right to ignore it. I think speed limits are outmoded systems, but I pay the same ticket as anyone else when I get pulled over.
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Re: Righteous Indignation is Misplaced
Get the law straight: ASCAP has to plead "irreperable injury" under the law of injunctions, it's not that they think their business will be harmed more or less than if songs were played free, rather it's the fact that you can't un-ring the bell (or, in this case, un-play the song).
Does that make it any less ridiculous?
Get the business straight: it might be best to let some songs be played free, but ASCAP has to enforce their license terms occasionally (and publicly) if they ever intend to enforce their license at all.
Indeed. Again, that doesn't make it any less ridiculous. I've pointed out pretty clearly why enforcing that license is a short-term strategy that harms long term business opportunities.
lways letting every bar, club, arena, radio station, etc play music free might be a fun model, but it's certainly not a business model.
I would disagree and the basic economics says that it absolutely is a business model.
but if they are going to charge for music then they have to occasionally enforce against those who will ignore the law.
But if the actual end results are that they're shrinking their market and harming their business, then no, they shouldn't enforce the law.
Get the business straight (2): Randomly enforcing on a large scale is far more efficient than enforcing every violation for nickels and dimes.
This is true, but that doesn't make it either right or fair. Paying $40,000 for having a cover band play seems pretty unfair no matter how you look at it.
The litigation costs are immense.
Why should that matter? There is no reason why ASCAP needs to litigate. If it's expensive, then it suggests that they're doing business badly.
But, it's a lot less expensive to sue one bar for $30,000 than to sue 100 bars for $3000. See the Law & Econ literature on optimal deterrence to get a more nuanced view on this.
I understand that, but you should do a little literature reading yourself on how overly aggressive lawyering backfires badly...
Get the business right (3): Since ASCAP's strategy is to make a very large and public suit occasionally rather than to sue every violator, Techdirt has just played into their strategy by publicizing this suit. Way to go.
Yes, we've also publicized how ridiculous it is so that hopefully businesses start changing their models and politicians start changing laws to better reflect reality. That seems like a fair tradeoff.
In short, Techdirt (again) trades short-term righteous indignation for long-term value
How so? By pointing out how ASCAP's short-term strategy is long-term suicide? By pointing out how ASCAP's strategy SHRINKS the music market? I don't see how that hurts long-term value. I'd argue the exact opposite.
I certainly wouldn't trust my corporate intelligence to a company that doesn't understand optimal deterrence. I reccomend readers similarly think critically before falling into Techdirt's default smug indignation.
Your loss. Luckily plenty of companies trust us because they know we'll give them an honest and clear and detailed assessment of what challenges their business is facing and how to go about beating those challenges. We back up everything we say and companies find that valuable. There are certainly some folks who prefer to hear that their failing business model is "just dandy" and there are lots of research firms you can pay to hear that sort of thing. Those companies will never be our customers anyway -- nor will they last very long. The ones who actually want to survive past the next few challenges do come to us and they're pretty damn happy about what we give them.
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Quick response
> Does that make it any less ridiculous?
Yes, in fact. It seems that "irreperable injury" is a legal "magic word" rather than an actual argument. You argued that it was ridiculous that they really think they are being irreperably injured.
It is NOT ridiculous to use the right magic words when you are pleading a copyright suit.
It IS ridiculous to take the magic words that are part of a pleading document and hold them up as evidence of a business strategy or lack of thought.
To take the example one step farther: if copyright suits required putting the word "MIKE RULES!" at the top of every page, it would hardly be ridiculous for a company/organization to put the word at the top of the page, even if it had nothing to do with the content of the lawsuit. It would be silly for a site like Techdirt to make fun of them for writing "MIKE RULES!" at the top of the page, even if Mike does not in fact rule.
> Why should that matter? There is no reason why ASCAP needs to litigate. If it's expensive, then it suggests that they're doing business badly.
I know that you disagree with copyright generally. But if you accept that the only purpose of ASCAP is to enforce copyrights of participating musicians, how else are they supposed to enforce the terms of their license?
Step-by-step: (1) Band signs up with ASCAP. (2) Somebody plays songs from Band without a license. (3) ASCAP sends nice letters. (4) ????
If (4) doesn't include the possibility of litigating, then ASCAP could never ever do business. The threat of litigation is what keeps cover bands (and bars) honest.
It'd be like saying that if your mortgate company has to foreclose on your house then they are doing something wrong. It's quire possible that they did choose to lend to an untrustworthy lender and did do something wrong. BUT, if you took away the ability of mortgage companies to forcelose then nobody would pay their mortgage. The threat of litigation at the end of the road is what keeps you paying your house (or car, or student loan) bills on time.
I'll happily admit that ASCAP has been heavy-handed. There are plenty of stories of trivial violations (playing a few bars of a song, rather than an entire performance) resulting in nasty letters from lawyers. But you are attackng them for the wrong reasons.
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I bid the 17 cents up to 5 dollar.
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Re: Re: Righteous Indignation is Misplaced
Amen brother, that guy sounded like a member of the ASCAP anyway
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Re: Quick response
Yes, in fact. It seems that "irreperable injury" is a legal "magic word" rather than an actual argument. You argued that it was ridiculous that they really think they are being irreperably injured.
Wait, you want us to believe it's okay just because the law requires a "magic word?" Do you understand how silly that sounds?
It IS ridiculous to take the magic words that are part of a pleading document and hold them up as evidence of a business strategy or lack of thought.
No. It's not ridiculous. Because it shows how far out of touch the law is with reality. That's an important point.
if copyright suits required putting the word "MIKE RULES!" at the top of every page, it would hardly be ridiculous for a company/organization to put the word at the top of the page, even if it had nothing to do with the content of the lawsuit. It would be silly for a site like Techdirt to make fun of them for writing "MIKE RULES!" at the top of the page, even if Mike does not in fact rule.
Yes. It would be ridiculous for obvious reasons -- and pointing out that it's ridiculous would make a tremendous amount of sense.
Just because the law says you need to do something doesn't make it any less ridiculous when you compare what the law says you need to do with reality.
I know that you disagree with copyright generally. But if you accept that the only purpose of ASCAP is to enforce copyrights of participating musicians, how else are they supposed to enforce the terms of their license?
I don't "disagree with copyright." I think that the industry is better off ignoring copyright since it can grow its business much faster and bigger without it.
As for ASCAP, you focus way too narrowly here. I think the important point is that the music industry should realize it doesn't need ASCAP -- and, in fact, that ASCAP is doing a lot of harm to its business.
The point of ASCAP isn't, as you say, to enforce copyrights. The point of ASCAP is to be a function of the music industry to help it grow and make money. However, if it's doing the opposite, then why defend it?
It's like saying that the point of the makers of horse-drawn carriages is to sell horse-drawn carriages -- so they absolutely should prevent automobiles from ever hitting the market. That sort of logic doesn't make sense in the business world.
It'd be like saying that if your mortgate company has to foreclose on your house then they are doing something wrong.
But ASCAP isn't like the mortgage company, that actually makes a transaction to provide additional value. ASCAP is a function of the music industry as a whole -- and its one that does more damage than good by shrinking the overall market.
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I respectfully disagree
Mike, I respectfully disagree with your contention that ASCAP serves no function. I think that if I could form a band (let's call it "Fall In Boy") that did nothing but play Fall Out Boy covers without paying anyone, then FOB would be harmed and less likely to put time and energy into making their music. I agree that in general it's good if FOB can get their music out further. But, I know that FOB puts on a crappy live show. My big corporate-backed band could put on a much better live show with the same music. Fans of the FOB experience would come to my show rather than the FOB show. FOB would get nothing from my FIB tour. Zip, zero, zilch.
Sure, maybe fans would buy more FOB tracks from iTunes (or download them off bittorrent), but under current law I can also sell my covers on iTunes. With no source of revenue left, FOB dries up and folds. The world is poorer by one post-emo rock band. It's entirely an empirical judgment (about which we have no evidence) whether the world is better with knock-off cover bands replacing the original artists on tour. It's an extreme example, but at least under current law the bands that play covers have to compensate the original artists (who voluntarily associate themselves with ASCAP).
It's in fact very weird (and anti-copyright) that current law has a mandatory license for covers. It's not a fair use question: a band is making full commercial use of the entire creative work. It'd be like saying that I can make a full copy of Techdirt without permission so long as I pay a fixed royalty to you. Your proposal would say that the market for Techdirt is better off if I can copy Techdirt for free and put my own advertising on the mirror. I'm going to guess that you would sue if I were to site-skim the entire content of Techdirt and post it on my own site with advertising all over it, even if I attributed the content to Techdirt. (If not then let me know -- I'd be happy to run the experiment.)
I think the proof of the folly in your argument is that hundreds upon hundreds of bands do voluntarily choose to associate themselves with ASCAP. The few that do agree with you are free to allow cover bands to play their songs. I think Magnatune (based on Berkeley) is close to this model, as are the jam bands that allow free taping/trading.
I don't want to belabor this poitn all morning, so I'll let it go after this round. You get the last word if you want it. Have a good day and thanks for discussing this intelligently and civilly.
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Re: Quick response
You oversimplify to make a point that wouldn't exist if you *didn't* oversimplify.
Irreparable Injury
Any harm or loss that is not easily repaired, restored, or compensated by monetary damages. A serious wrong, generally of a repeated and continuing nature, that has an equitable remedy of injunctive relief.
It's not a magic word any more than 'rape' is a magic word girls say after they have sex with a guy and regret it later. If they can't prove that they meet the definition, they shouldn't be suing. I can't imagine how a cover band playing some songs in a bar hurt the artist in any way shape or form-- so, it's less suing for damages and more a public demonstration to other bars for "this is what will happen to you unless you pay our music tax!"
Now, what I don't understand is why the bar owner got the fine, when the cover band did the deed. Maybe, just maybe, it's because cover bands don't have $40,000 to be taken from them, and bar owners do.
The entire system is a sham, and needs to be revamped, if not altogether removed.
As a side note, if *enough* people don't like a law they can ignore it-- keep in mind that there are several states that it is illegal to get a blowjob in-- I'm *sure* people all pay attention to *that* law. For the people, by the people.
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Re: Quick Response
there are several states that it is illegal to get a blowjob in
Not after Lawrence v. Texas. Blowjobs (and sodomy of all combinations of two individuals) are free and legal in all 50 states. Any laws on the books to the contrary were rendered unconstitutional by Lawrence, and thus null and void.
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Re: Re: Quick response
Mike just owned you Brothers. Just quit you business and governmental mindset and take a look at the situation in a logical sense.
If people never get to hear the music, they don't like the music, therefor the music makes no money. People don't just know about music, they hear it for themselves. Sometimes it's cover bands, sometimes it's internet radio stations.
If the ASCAP is going to cut down on the amount of people who listen to the music to uphold dated practices and models, then they're better off gone. What money is lost from a cover band making YOUR songs more well known? Some of those people probably went home and researched the song because they wanted more of it.
Laws are upheld to support and maintain society and it's progression, not impede it. You (The Brothers) obviously don't care though, as long as we go with what has worked before, right?
Stop focusing on how much money is lost now, and think about how much could be made in the future. A true business model does just that.
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In response to The Brothers...
What an idiot. This is what is wrong with the world. It is full of idiots like The Brothers. Which unfortunately implies more than one idiot.
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Thanks Brothers, your check is in the mail
Thanks Brothers, we appreciate what you're doing for us, but we prefer to look like a big raging asshole entity rather than argue any points intellectually. But we'll send you your agreed upon rate for your defense of our outdated mode of thinking.
Check is in the mail.
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Re: I respectfully disagree
"My big corporate-backed band could put on a much better live show with the same music. Fans of the FOB experience would come to my show rather than the FOB show."
That, my friend, is ludicrous.
If Fall Out Boy were any good, and had any good fan base, they wouldn't pass up an original version of a song for a cover.
And obviously you don't go to shows often, because to go to one show and not the other... why? That makes no sense! Go home.
"Sure, maybe fans would buy more FOB tracks from iTunes (or download them off bittorrent), but under current law I can also sell my covers on iTunes. With no source of revenue left, FOB dries up and folds."
First off, FOB folding up because of covers. Mhmm... That's a silly scenario. The band would obviously suck if that occurred.
Second, this is a different argument all together. If you're going to sell a recording of a cover song, that would be a legitimate case for them to sue, because it's something a user could hear over and over and would in fact cause financial damages. A show is a one time deal, leaving people wanting more (which they're most likely going to get from the origin that the cover band). So, it's not applicable to your argument.
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Re: So....
I counter with zero cents.
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I predict future band contracts will specifically state that the band is liable for any/all royalties owed on songs performed.
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Mike isn't that hypocritical
It'd be like saying that I can make a full copy of Techdirt without permission so long as I pay a fixed royalty to you. Your proposal would say that the market for Techdirt is better off if I can copy Techdirt for free and put my own advertising on the mirror. I'm going to guess that you would sue if I were to site-skim the entire content of Techdirt and post it on my own site with advertising all over it, even if I attributed the content to Techdirt. (If not then let me know -- I'd be happy to run the experiment.)
Correct me if I'm wrong but I believe this has already been argued, Mike's response was approximately "skim it if you want but wouldn't it be much easier if you just used our rss feed? Go ahead, either way people will figure out the real source and it's only more publicity to us." So you see that's exactly what he is saying - except about the royalty part - the extra traffic (if any) is payment enough and if you cover a demographic etc that Techdirt doesn't then it certainly doesn't harm them - in fact it helps to expand the market they are in thus benefiting them.
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Re: Re: So....
Well, they won't see the lion's share of the $40,000, that's for sure, but they should see something out of it. My father used to belong to ASCAP, and while we never depended on those checks for income, now and then we'd get a nice one and go do something special, like hit an amusement park or something.
Of course, I only know what we got out of the deal - I have no idea how much ASCAP got, and I'm sure it's far more.
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Re: Re: Quick Response
Oh dear. And 1993, to boot! What cave have I been living in? I seem to have been incorrect-- though it makes me wonder if it's still in the UCMJ (Uniform Code of Military Justice)-- because last time I was forced to read it, it was.
At any rate, replace "there are several states that it is illegal to get a blowjob in" with "it is illegal to hang things on your rear view mirror" to keep my point intact.
:P
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Re: Re: Re: Quick Response
*sigh* 2003, I mean. I'm done. :-/
:P
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Re: I respectfully disagree
> "I think that if I could form a band (let's call it "Fall In Boy") that did nothing but play Fall Out Boy covers without paying anyone, then FOB would be harmed and less likely to put time and energy into making their music."
Funny thing, though. Oasis's record label didn't sue No Way, Sis!, despite their being a reasonably popular cover band at the height of the Brit Pop boom. People were still willing to pay ludicrous prices to see Oasis live, still bought the records, still joined the fan clubs, etc etc, and getting the live music vibe just made them like the songs more.
It's almost as if they increased the popularity of the music and allowed Oasis to make more money from it.
Hang on, that sounds familiar... has someone suggested that on here before?
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Re:
I can't understand how that's not common sense. Whether you agree with the whole copyright system or not, I hope we all concur that if ASCAP *were* going to be an ass and sue someone, the club owner is the wrong party to sue.
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ascap is a joke!!
Lets face it with DRM out the window and file sharing back on the rise does anyone really think a company or "service" like ascap is really going to survive over the long term. The word "Copyright" will not even exist as we know it in 10 years. Thats why they are trying sue everyone now, they see the writing on the walls.
abstract10.com
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wow.. amazing..
This is so funny! Keep it up guys! Seriously.. a guy puts out a logical, intelligent point / counterpoint and he gets shot down by everyone here as being illogical and being a paid stooge of "the Man". I’m sorry but Brothers arguments are logical, everyone else seems to be shooting emotional garbage, not valid arguments. I see both points. You guys seem to be all for free music. But that band and the bar made money on work of another person. I see it as fair to ask that the original content owner get compensated, but I also agree that the 40k fine probably didn’t go to the band being covered at all. Oh, and if the cover band is more popular than the original bad, eventually, the cover band better be able to write their own songs and become an original band. I see the cover band / original band relationship as being a symbiotic relationship. Both get something out of the relationship. Original band: gets “royalty fees” from the cover band, and some exposure. Cover band gets money earned from playing venues and to play the music of their favorite band live for fun and money. Realize that the people that go see cover bands generally are already fans of the original band. I’m sure you guys will scream about conspiracies or argue with profanity to make your “point” but in the end, I don’t care. I just wanted to point out that the people saying that the guy wasn’t arguing with logic or intelligence were in fact, the ones using only emotional arguments, and nothing logical or intelligent at all. It was amusing. Thanks! Personally I could care less. I think the 40k was too steep a fine for the offense, but I agree that the OB should earn a small fee for the right to use their music in public performance for money. Free concert? Fine.. no fees required! Anyway, that’s my 2 cents worth, which is more than the OB will get from that 40k fine.
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This article can be summed up in one single word: GREED
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Re: wow.. amazing..
And here come the shill reinforcements.
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...and yet again....
I repeat myself.... Cover bands do not hurt the industry. I can't tell you how many people have come up to us after a gig and asked what band played a particular song we did earlier..... so that they could go purchase the CD.
All this is doing is hurting the people who love playing music for other reasons than just sheer profit.
I don't know of any band thats ever complained because some local cover band is playing a song of thiers.... The pros that I've spoken with and jammed with through the years seem to think that it's a compliment.
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Re: wow.. amazing..
They shoot it down, because many of the readers here are cellar dwelling slackers that don't hold a job and think no one else should be entitled to make money on anything they create.
ASCAP, BMI and SESAC have been around for decades and have always required venues obtain performance licenses. Any business that profits from a musician's intellecttual property must have a license and that includes your local doctor's office if he uses a music-on-hold system.
I challenge any of the dopers on here to create anything the public wants and let's see them give it away. Oh yeah, you'll have to provide the bandwidth to download it if it's digital, or the printing costs if it's not.
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Billy said it best
Didn't the Bard say " Kill all the lawyers, kill them tonight" ? Or was that Don Henley? Whoops, it was probably Eagles songs that got them in trouble,,,
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Well... sure... Give bands and others a reason to do their own custom stuff. It may well be better than the commercial stuff.
I'm curious what history will say about all of this. "The recording companies of the past refused to accept the new technology and faded out of existance."
hmmm, who knows?
I know one thing - business models may need to change... The concept of new technology and easier to use media will not change, that will continue to be a steady flow. It seems the best innovations are sometimes done under pressure anyway.
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Re: ...and yet again....
Bluezman.. I see that you have a tainted opinion, because you are in the business at the middle of this discussion. I understand where yor coming from, but do you not see that a simple license to perform said music would give you legitimacy and the band covered would get something to compensate them for use of thier material. Being a band, is a method of earning money to survive. A Business. They put effort and work into creating the music you are playing, and they deserve to be recognized and compensated. Sure, you can love playing music, but in the end, you still need to eat, and pay the rent. I bet you don't play for free. the venues that have you play, they get a cover charge for people to watch you play, right?
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suing at random
Here's where The Brothers logical, but no less snide and dismissive argument falls apart for me: "ASCAP's strategy is to make a very large and public suit occasionally rather than to sue every violator."
The law cannot be applied selectively. Either they sue everyone or no one. Otherwise the law has no teeth.
In addition, one might say this strategy could lead to them to suing on a basis of, say, racial bias, targeting only black clubs, but it's more likely their suits are only in defense of the largest bands, who might be able to put the most pressure on them and who earn ASCAP the most money.
If I were a songwriter, I would ask ASCAP whether my property was being defended as zealously as that of Zep and VH. Certainly I didn't see ASCAP chaining the doors of my local elementary school, whose annual pageant included a version of "Secret Agent Man."
Of course, I would also ask whether the suit had something to do with the Zep cover band being lesbian.
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Re: Re: wow.. amazing..
Actually DJ, if it's digital there are plenty of ways to spread your creation without providing bandwidth. YouTube and it's clones, bittorrent etc. If it really is something "the public" wants, it'll pretty much spread itself. Whether or not the public will know they want it without someone on TV telling that they should want it, is another question. Amazing world we live in, eh?
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I'll go for 3 cents, on paper. In reality they will be charged 36 cents to cover the cost of the stamp, having subtracted the 3 cents they were owed.
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Re: Re: ...and yet again....
so the qualifier "so that they could go purchase the CD." doesn't count?
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Re: ...and yet again....
I have seen this as well (at least from backstage). My uncle played in a rock cover band called Phoenix. Not only did they get lots of requests to cover more stuff, they did it so well that the singer went on to a recording contract on remakes of older country songs. That singer was Tracy Lawrence. The only time I saw them perform in public was the Wal-Mart parking lot in Minden, Louisisana.
The fact that he left his band behind hurt the band members. The fact that he did not include them in his bio was a slap in their faces.
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Close, but no cigar...
This article can be summed up in one single word: GREED
And forty grand for ten songs isn't?
Pot. Kettle. Black.
I understand the need to compensate composers for their efforts, but this seems just a trifle heavy-handed.
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ASPCA??
American Cleft Palate-Craniofacial Association?
American Society for Prevention of Cruelty to Animals?
:)
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Re: Re: Re: ...and yet again....
Nope, buying the CD doesn't count because the labels keep the vast majority of that money.
I wonder if Marilyn Manson pays licensing to do covers? I know for a fact that they do covers, I've even heard them cover Type O Negative (a much less known band).
From what I've seen of cover charges and what cover bands get paid, I'd say don't quit your day job or you won't be able to afford to play at most venues. Unless you are a popular cover band you won't make minimum wage on cover charges, and if you have more than four band members then you're practically playing just to cover instrument upkeep while praying a scout sees and like you.
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Re: Righteous Indignation is Misplaced
ASCAP is no more justified whether or not Techdirt is aiming toward sensationalism.
I have seen people cover popular Christian music in churches. Would the churches be equally as subject to such fines, or are non-profits exempt? If a business can claim it is not taking a profit on a night that such an incident occurs, can they get the same exception, or does "intent to profit" then come into play?
Can live performances be protected under our right to free speech in the US, or does that whole profit margin actually negate such Constitutional rights?
Sounds to me like ASCAP just needed some spending money...
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I've said this b4
and I'll say it again. I don't like ASCAP, or thier methods. I'll also say that I don't belive that the original artists will even see half that payment especially by the time the lawyers get through all their charges. However, I do respect thier right to collect a fee for something they license. What I don't agree with is the fact that the bar/club/property owner is held liable for the fines, when it seems to me that the band itself should be responsible. We are not talking about a jukebox here, which is fully in the bars control. The bar owner really has no way of knowing what a live band will play, until it's played. They could have auditioned with thier own original music for all we know (and I'm not syaing this is the case). It just seems to me they are going after people who really shouldn't be repsonsible. Might as well fine the crowd too for listening to this illegally played music. They are walkinga fine line and a losing battle if you ask me.
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Ha!
What's next? Suing instrument stores because a 12 year old picks up a guitar and plays Stairway? This is ludicrous.
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Lawbreaking
First, some laws should be broken -- Rosa Parks on the bus in the 60s comes to mind as a strong example of defying senseless laws that not many (white) Southern people of the day (I am one, btw), took issue with. I believe (at least hope) most of us agree she did the right thing.
Now, I'm not equating music with human rights, but the point is if a law is truly ridiculous, speak or act out against it.
Read this http://archive.southcoasttoday.com/daily/08-96/08-23-96/b02li056.htm
and see how you feel afterward.
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Sounds to me like ASCAP just needed some spending money...
If you think ASCAP is going to make a profit off of a $40K lawsuit you've clearly never been involved in litigation.
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If the owner got a license he'd have saved about $
The business owner profitted from this, and he could have obtained a license for 10 songs for around $300 for a single performance. Any bar manager (around here) knows this and it's usually more economical to get a yearly license.
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Re: I respectfully disagree
"It'd be like saying that I can make a full copy of Techdirt without permission so long as I pay a fixed royalty to you. Your proposal would say that the market for Techdirt is better off if I can copy Techdirt for free and put my own advertising on the mirror."
This analogy makes sense only if all ASCAP music were freely available to anyone at any time in the same way that Techdirt content is.
Last I checked, ASCAP music isn't freely available, and this fact forms the base point presented here earlier. ASCAP litigation of free distribution points is a negative business model because it severely impedes product recognition in the free market.
On the other hand, I'm not losing any sleep over lawyers bleeding the ASCAP or RIAA into a dry husk.
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I am founding the ASCJC (American Society of Comedians, Jokesters and Clowns)
My plan is to go after people (clubs, networks...)that "cover" jokes and comedy bits without paying royalties.
Look out Mencia, you are first on the list.
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Re: wow.. amazing..
Welcome to the Internet...
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Re: Re: Quick Response
I want to thank you for this post. I was still under the assumption the old sodomy statutes were still in effect. Think I'll head on down to Dort Hwy.....
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not sure if this was said but there were two many comments to read them all.
when a restaurant plays music, id think its wrong it has to pay any fee. Cause the music isn't the reason why customers go to said restaurant.
but when a club gets a band to perform the clubs income comes from said music so who ever owns the rights to those songs is entitled to there cut.
and thats were the ASCAP comes into play here (if the musicians gets his cut or not thats an other story)
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Re: Re: Re: Re: ...and yet again....
Type O Negative is a less known band? I thought everyone knew Black #1....
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Re: wow.. amazing..
>But that band and the bar made money on work of another >person.
Actually I'd argue that ascap is making money on the work of another person. The band actually played the songs themselves, put their own feel into it, whether they intended to or not. All ascap does is demand money whenever someone plays some elses song.
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So Anonymous,
Are you saying that the band doesn't profit from this? That's ridculous. Live music in general will draw a larger crowd, not which songs they play (although admitedly the songs they are know to play are also a draw). If anything the songs the band play make the band a bigger deal, and hence more profitable by playing what they play. If they play it well, they will get more gigs. My opinion, is that teh bands should pay the fees, and use that as leverage for what they charge, the bar or club owner for what they perform. That at least would induce the original goal behind intellectual property and copyright by encouraging these bands to come up with original material. They won't do that so long as they are not responsible for what they play.
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Re: Close, but no cigar...
Is it really that hard to understand? The $40K isn't the fee for playing the songs, it's the amount of a lawsuit filed because the club DIDN'T pay the appropriate fees. As for the "WTF that the club pays the fine and not the band?" question, it's also pretty simple. ASCAP is a Performing Rights Association. Basically, they grant licenses to venues, radio stations, etc. (not bands) to play (or have other people play) music by their member bands and artists. This keeps the club owner from having to get individual permission from each artist or band. They pay an annual fee to ASCAP and they are covered. Trust me, it would cost a whole lot more if they had to work with the Royalty and Publishing departments of EMI, Warner, etc. The record company or original band would still have the right to sue the cover band if that's what you really want. Oh, and BTW, I'm waiting on the screwuptechdirtsbusinessmodel.com mirror site. The comments will probably be a lot more intelligent.
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so
i frequent some bands on myspace...one in particular has a very clever cover of a very popular song, does that mean each time the play button is clicked on his myspace page, he's paying someone? its not like he's right there playing it or has any control over when its played...would that not be the same argument for a restaurant who's simply looping a cd for background music...?
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quick reply..
ASCAP provides a service to writers / musicians. It's the AAA of that industry. They supposedly send the money for licensing minus a small fee to the artist. They are not the RIAA.. lol they provide a business service. If the Agent was doing the work, it would be more difficult, and likely more costly for everyone. why not cehck out thier website? should have been part of the research to make a knowledgable remark.
Spork - yeah Type O Negative is a smaller, lesser known band than Marilyn Manson. Roadrunner records isn't exactly a large label :)
The Man - that is a great idea actually. I bet Comedians would pay for a similar service to protect thier work. good luck with that. ;)
Stephen - I don't think that the line quotedd is snide or dismissive. You do have a small point that they should chase everyone, but then again, the cops should ticket every speeder too, but sometimes they just issue a warning. You have a problem with that too? Just asking :D
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TEchdirt rip-offs
Mike has posted in the comments before now that he knows of several sites which do nothing but copy off of techdirt, and none of them are as sucessfull in terms of readership or posts as this site. After a while the sites tend to die out, adn the readers eitehr come here or just go back to thier mundane little worlds.
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Stupid
Yeah this is BS ... I met a restaurant owner that had to switch to playing international label music because a customer turned him in and the RIAA wanted royalties for the music he played for customers.
As for clubs/bars, a pub in Portland, OR had this same thing happen where a band played a cover song and the RIAA is hounding him. He almost had to close his business because the fees they wanted were so high!
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Neutral Party
I found the entire post snide and dismissive, not that one line in particular, but the post did raise some good points.
Your speeder analogy is flawed because it suggests that ASCAP might have let the bar owner off with a warning. To use that analogy, I'm saying ASCAP is only going after certain speeders and fining them, while letting others go. In NJ, that attitude leads to tickets for "driving while black" and the governor having to beg for a ticket for not wearing his seatbelt after getting into a huge accident.
Here's what I'd like to know: Does a venue have to pay ASCAP if a band performs its own ASCAP songs?
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Clarification
Everyone, can we get 1 thing strait. ASCAP is solely about the WRITERS/Publishers of the song, it has nothing to do with performing artists. The RIAA covers that end..
1) The RIAA has jurisdiction over RECORDINGS as given to them by their members. Nothing else. The have jusrisdiction over Britney Spears' recording of "Baby...one more time".
2) However, If I had written the song, "Baby...one more time", It is the Jurisdiction and duty of ASCAP to tell Britney to pay me royalties for that use. ASCAP protects the Writers.
3) If I sell albums of my favorite Bon Jovi songs, that I recorded myself singing and instrumentally performed myself, I can do that. No matter if it sounds almost identical to Bon Jovi's recordings, the RIAA cannot prevent me from distributing those albums. However, Bon Jovi (who writes most, if not all of their own songs) has the right to sue me for their due right to use roalties.
4) the other important note. ASCAP does not have the authority to grant/deny permission for performance of a song. The performance venue (in the case of a live performace) or the recording studio (in the case of a recorded album) is required to pay fees to ASCAP for the right to perform said song. They pay the fee and they have the inherant right to allow performance. There are multiple options, one can pay a per song per use fee (commonly done with smaller recording studios) where they pay per copy sold/performed. or they can buy a blanket policy (done by clubs, churches, etc) in which they can perform any song, unlimited times, within the list of works under said policy.
I hope that clears a few things up..... Thanks for your intelectual understanding of the issue.
PS. I only referenced Britney Spears as she was one of the only artist that I could think of that everyone knows, but doesn't write her own music (I could have used any of the the teeny bopper artists of the late 90's, but chose the beautiful, bald one)
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RE: Stephen
It entirely depends on the booking contract between the venue and the band. Commonly, and by default if it is not specified, it is the responsibilty of the venue. Bands will pay for recorded works, venues pay for live perofrmances. Venue's may differ responsibilty of rights to the band if they so choose, but it must be explicitly stated in the booking contract.
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Re: Stupid
It has nothing to do with the RIAA. It would be ASCAP or BMI, and if you know how to run a pub, you know you pay licensing fees for live music, jukeboxes, just like you pay licensing fees to sell liquor, and serve liquor.
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Wisconsingod: Thanks.
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Complaining about this situation is completely ridiculous. It's like if I illegally ride the subway without buying a ticket every day, and then one day I get caught and am slapped a $1000 fine. The headline will read "Man has to pay $1000 to ride the subway for 10 minutes". The article will go on to say "he was just going to the next station" and "I wonder how much of this $1000 will actually go to the driver".
As a musician myself, dealing with SOCAN (the Canadian equivalent), I see absolutely nothing wrong with this. I assume ASCAP is quite similar. Here's how it works -- every establishment that plays music pays licensing fees to SOCAN. This isn't just live music. Even playing CDs in a coffee shop they're supposed to pay fees. These fees are generally quite reasonable. They also collect money from radio stations, so you it doesn't cost you anything to put on the radio. SOCAN samples radio playlists, they sample what's being played at bars, and try to approximate how much market share a given artist has at a given point in time. The system of course isn't perfect, but it is entirely non-profit, and the money goes directly to the artist.
Anyways, they're not paying a $40k fine for this one cover band. That's just the incident they got caught with. If you ride the subway, you gotta buy a ticket. Deal with it.
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TechDirt Rip Offs
Techdirt seems to give away some content and sell other content. Does Mike have an opinion about people buying a subscription and selling the subscription content to multiple parties?
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Re: I respectfully disagree
I think that if I could form a band (let's call it "Fall In Boy") that did nothing but play Fall Out Boy covers without paying anyone, then FOB would be harmed and less likely to put time and energy into making their music.
This is a bizarre statement. Have you looked at the cover band market lately? They tend to help promote bands quite a bit. Bands that actually get cover bands tend to be a lot happier because it shows how big they've become. It helps promote their music. It actually gives them more incentive to create more music.
I agree that in general it's good if FOB can get their music out further. But, I know that FOB puts on a crappy live show. My big corporate-backed band could put on a much better live show with the same music. Fans of the FOB experience would come to my show rather than the FOB show. FOB would get nothing from my FIB tour. Zip, zero, zilch.
Again, I'm wondering if you've paid attention to the real music world. People want to go see the real thing and will pay a tremendous premium for it. If the cover band puts on a better show, then that's great, but it's quite unlikely to harm the original.
It's entirely an empirical judgment (about which we have no evidence) whether the world is better with knock-off cover bands replacing the original artists on tour.
What do you mean there's no evidence? Look at the world of cover bands today.
. It'd be like saying that I can make a full copy of Techdirt without permission so long as I pay a fixed royalty to you. Your proposal would say that the market for Techdirt is better off if I can copy Techdirt for free and put my own advertising on the mirror. I'm going to guess that you would sue if I were to site-skim the entire content of Techdirt and post it on my own site with advertising all over it, even if I attributed the content to Techdirt. (If not then let me know -- I'd be happy to run the experiment.)
At least once a week someone seems to make this suggestion and at least once a week I respond in the same way:
No, I will not sue. There are many sites that already do this (around 7 to 10 last I checked). In fact, we have an RSS feed to make it even easier. Here's why it's dumb, though:
(1) Those sites never get any traffic. It's a waste of your time and bandwidth.
(2) If people do discover those sites, it takes them about 3 minutes to realize the content actually comes from Techdirt. Then most people come to Techdirt instead, realizing they can get the original content faster here. So it helps us. Thanks.
(3) People also realize that if they read Techdirt here they can actually engage with the authors, which they simply can't do on your site.
(4) Finally, it destroys your reputation, because people start wondering why you would simply copy Techdirt content rather than actually adding value. You can copy my content all you want, but if you destroy your own reputation that's hard to get back.
So, basically, copying our content ends up being bad for you and good for us. Why would