D  e  s  e  r  t     E  x  p  o  s  u  r  e      january 2005

The Sound of Silence

How organizations meant to protect songwriters' and performers' rights are putting them out of work.

By David A. Fryxell

Imagine if every time you walked into a library or bookstore, that place had to pay a fee because--you never know--you might photocopy something from a book or read something without paying for it. This would be great for us writers, but only in the short term, because pretty soon small libraries and bookstores wouldn't be able to afford books any more.

The Twisted Vine's Jim Kolb

Somehow, America's songwriters have arranged just such a sweet deal in copyright regulations and enforcement. If a coffeehouse, bar or nightclub wants live music, it's supposed to pay royalties for the music it might play--never mind what songs actually get performed, or if the performer plays only his or her own material.

The same sweeping rules protect recorded performances of music. If you want to play CDs as background music in your restaurant--or your hair salon or flower shop, for that matter--you're supposed to pay up. Bet you thought when you bought that CD you had the right to play it, didn't you? Wrong--not if somebody else might be listening. The same goes for aerobics instructors who play music to exercise to. Want a little mood music while a telephone caller is on hold? That's also a "public performance"--pay up or else.

Ridiculous as they may seem, these copyright rules are serious business. As several of the agencies responsible for collecting these fees have turned their enforcement attention to the Southwest, the copyright laws meant to protect songwriters' and performers' rights are putting them out of work.

Jim Kolb, who operates the Twisted Vine at 108 Broadway in Silver City, got his first letters from ASCAP (American Society of Composers, Authors and Publishers) last summer, demanding that he pay for the right to host live music. "I tossed them," he says, "but they didn't go away. Pretty soon the calls started."

The ASCAP representative was quite professional, Kolb says, but also crystal clear. If he wanted to hire a lawyer, they'd be happy to send a packet of information to his attorney, too. And oh, by the way, the batting average of anybody who has tried to block ASCAP in court is pretty much zero.

Representatives from BMI (Broadcast Music Inc.), another music organization, were less genteel when they got around to Silver City not long after. "Like a typical bill collector" is how one local club owner describes BMI's approach.

Based on the number of live performances listed in Desert Exposure, Twisted Vine owed ASCAP more than $800 a month, retroactive to August when the organization first spotted the performance listings. Fees are based both on the amount of live music and the seating capacity. Twisted Vine falls in the 75 and under seating capacity category, which Kolb says is "a huge mistake. There's a big difference between this place with maybe 25 seats and a place with 75. There's no leeway for small businesses. They say, 'This is it--pay.' End of discussion."

There's also no adjustment for an establishment's location. "Rates for restaurants of the same size, with the same use of music, are the same regardless of whether the restaurant is in Oshkosh or New York City," boasts the ASCAP Web site, as an example of the organization's "fairness." Evidently nobody from ASCAP has visited Oshkosh recently--or Silver City--to see how the average dinner tab compares with the Big Apple.

Kolb's pleas fell on deaf ears, so Twisted Vine has cut back from three nights of music each week to two, dropping Wednesday performances, at least for the winter. That will shave his ASCAP fees to "$500-something."

ASCAP and BMI fees led Vicki's restaurant in Silver City to drop live music entirely under its former ownership. The fees were a factor in Dan and John's Rejuvenations, also in Silver City, cutting what had been an ambitious live music schedule. Other establishments in the area have been paying ASCAP and/or BMI or are still flying under the radar for now.

It's not just Small Town USA that's affected, however. John Tank, a frequent Silver City performer who also plays in New York City, tells Kolb that ASCAP and BMI fees have "shut down music in little places all over New York."

Even places that primarily feature singer-songwriters who play their own material must pony up. "There should be an exception of some sort," says Kolb. But ASCAP's response, he says, is to "assume you're guilty. Someday somebody is going to play 'Happy Birthday' and bang, you'll owe."

The same approach applies to song selection. "What happens if you don't use any BMI songs one night? Who the heck knows what's a BMI song?" Kolb asks. "To send them money for something I might do seems a bit bizarre."

Of course, you could search the song catalog on the BMI Web site (www.bmi.com)--or invest in a 17-volume printed catalog for a mere $1,200. ASCAP similarly has a "Clearance Express" on its Web site. As a practical matter, though, businesses must pay the flat monthly fees that ASCAP and BMI levy, regardless of what songs they actually have performed. As a Frequently Asked Questions page on the BMI site puts it, "Chances are, if you are playing music, you are playing BMI music."

If you don't want to play ball, ASCAP and BMI scour newspaper listings and employ what Harvey Reid, a Maine-based acoustic musician, calls "spies" to visit clubs and ferret out offenders.

Is it just a coincidence that ASCAP and BMI both came calling in southwest New Mexico in recent months? Kolb says the representatives who contacted him denied any collusion--that would be a violation of the law.

Reid has written a lengthy article entitled, "ASCAP & BMI--Protectors of Artists or Shadowy Thieves?" It's clear from reading it that he comes down for the latter: "ASCAP and BMI are extremely powerful organizations that control large amounts of money, and through the mechanisms of their various policies, lawsuits, intimidation, odd legal arrangements and seemingly outdated legal precedents, they are systematically engaging in activities that are entirely unregulated by elected officials, with rules and policies set by those who profit the most from the current system. Those who are in a position to reform the performance rights licensing system are the very ones who are profiting most from it, and the system currently shows no signs of abandoning any of its methods of running itself."

Does this seem fair? As far as the music organizations are concerned, the important thing is that it's practical: "There are hundreds of thousands of establishments--radio and television stations, nightclubs, hotels, amusement parks and the like--in the US where music is publicly performed," the BMI site explains. "It would be virtually impossible for individuals to monitor these music users themselves. Therefore, BMI acquires rights from writers and publishers and in turn grants licenses to use its entire repertoire to users of music. BMI collects license fees from each user of music BMI licenses, and distributes to its writers and publishers all the money collected, other than what is needed for operating expenses."

(Neither ASCAP nor BMI responded to requests from Desert Exposure for comments on this story.)

At least the songwriters and musicians are benefiting from what seems to the uninitiated curiously like a legalized protection racket, right? Wrong. Silver City songwriter and performer Wally Lawder sent BMI--where his work is registered--an email complaining about the effects of licensing policies on small venues here, but has yet to get a reply. "They're supposed to be protecting my interests," Lawder says, "but this has only hurt me. It hasn't benefited me."

So who does benefit? "Michael Jackson, Sheryl Crow. . .," Lawder says.

Kolb adds, "Who's this helping? Michael Jackson and others who've bought up the rights to songs. It's not helping Wally Lawder or Kim Young or other local performers."

How do ASCAP and BMI divvy up the license fees they collect? According to Reid, ASCAP employs "musical experts" to sample tens of thousands of hours of radio airplay; BMI uses radio station logbooks. Because neither organization samples performance venues, fees from places such as Twisted Vine are doled out on the same basis as radio fees. So, for example, radio faves such as Alan Jackson or John Mayer (both also songwriters) will get a cut of Twisted Vine's monthly fee, while singer-songwriters who actually perform there--but who get no radio airplay--may not get a dime.

In a news release about distributing $50 million in unclaimed royalties earlier this year, BMI bragged that it had garnered extra cash for David Bowie, Dolly Parton, Willie Nelson and Gloria Estefan--not exactly starving songwriters.

"It's totally fair to pay to do covers of other songwriters' works, but not at mom and pop local clubs," says Lawder, who does covers only on request. "I'd understand if it was a stadium gig or you were making a CD of covers--that's totally right. But to have to pay even if you're playing a CD as background music? I always figure that helps sell the album."

If a performer in some small coffeehouse someplace covered one of Lawder's songs, he says, he'd be flattered--and wouldn't expect to get paid. "But I would like it if somebody recorded my song or did it on a concert tour--then, yeah, I'd like some money if they're making money off it."

He adds, "There's got to be a fairer way. For a venue in a small town, it seems like there should be some assistance somewhere. This seems almost like protection money. It seems almost illegal."

Kolb does have an idea to help keep live music in downtown Silver City: Get all the local regular performers and those who often come in from out of town to put on a big benefit concert. The proceeds would go to defray the BMI and ASCAP license fees--so the rest of the year venues like Twisted Vine could afford to hire those performers.

He hopes the idea will catch on and live music can survive the BMI and ASCAP shakedown. In the meantime, what patrons will be hearing on Wednesday nights at the Twisted Vine--and every evening at venues that have given up on live music entirely--is the sound of silence.

David A. Fryxell is editor of Desert Exposure.

Return to top of page