License to Kill the Music: ASCAP & BMI Bullying Local Music Venues
Music licensing corporations aren't leaving a lot of elbow room for local venue owners
(Illustration by Ed Piskor)
By Steve Jansen
License to Kill the Music
On a recent weekday afternoon, I’m standing inside the Trunk Space with co-owner Stephanie Carrico. It’s about 110 degrees outside and a still-sweltering 95 inside the modest, non-air conditioned Grand Avenue venue. A homeless guy soaked in sweat and grease walks inside and asks if he can use the bathroom. Carrico, who sports an artist made tee, sans bra, tells him, “Sorry, but our toilet is out of order,” which is indeed the truth. The man and his full bladder leave. Then I start poring over documents sent to the Trunk Space by Broadcast Music, Incorporated (BMI).
The publishing company wants the indie venue to cough up $735 annually for a music license, despite the fact that all music played and performed at the space is original, copyright-free material. Wiping the moisture from her brow, Carrico points to a sentence in one of the BMI letters. It reads, “The choice is now entirely up to you.” Carrico says that there’s no way the Trunk Space -- a four-year old vanity business that specializes in avant-garde music and operates at a negative cash flow -- can afford such a fee. Carrico also tells me that BMI has called every day for the past six months. One message stated that Trunk Space needed to immediately call back BMI “or else.” Carrico says, “They never said what ‘or else’ meant.”
Between BMI and the American Society of Composers, Authors and Publishers (ASCAP), the two license about 97% of the music that’s played in the States. In principal, these juggernauts were founded with the little guy and gal in mind. (Basically, any publisher/songwriter, big or small, is entitled to royalties once they register their unique copyright with BMI or ASCAP.) But according to several local venue owners, these privately-held companies are using over-the-top, heavy-handed policing tactics and trying to levy fines at them when no copyrights have been violated.
Three years ago, John Logan and his partner Carla Wade opened the artsy restaurant/bar Carly’s Bistro on Roosevelt Street. Logan -- a tall, surfer-type dude who is probably the most laid-back guy I’ve ever met -- has been involved in the downtown scene for a decade, performing in the MadCaps, a band that drives around town and jams out of a truck bed. He wanted to open a space where local singer-songwriter friends could showcase their original music. However, from day one, BMI and ASCAP (and more recently, SESAC, or the Society of European Stage Authors & Composers) have been all over Logan to open up his thin checkbook. SESAC has even threatened legal action. “We always tell them that we have a posted no-covers policy with all of our musicians, which is also posted over there.” Logan points to a spot behind the bar, where Wade, who is seven months pregnant at the time of writing, refills a customer’s glass of water. “It would cost about $2,000 for each [BMI, ASCAP, and SESAC] per year for a music license. It’s just not logistical, especially as a startup,” he says. “Even if my business was established and I was pressured to pay, I would have to stop having live music. I don’t make any money off of live music here.”
Technically, BMI, ASCAP, and SESAC aren’t doing anything illegal, but the way they are going around and intimidating Phoenix’s indie businesses definitely goes in the “not very nice” category. They’re known to utilize everything from men in suits to stacks of paperwork riddled with intimidating legal jargon. Some local movers-and-shakers find the whole “spy vs. spy” vibe humorous, but they’d probably see more levity in this fracas if they had a chance in hell of winning a lawsuit.
Which they don’t. John Hay, of Phoenix law firm Gust Rosenfeld, has expertise on trademarks and copyrights. The corporate and commercial law attorney explains that these licensing companies are justified in the eyes of U.S. Copyright Law. The chance of a business owner ever winning a lawsuit against ASCAP or BMI is near impossible.
Jerry W. Bailey, BMI Senior Director of Media Relations & Business Communications, says that most business owners don’t understand copyright issues. He also thinks that the letters and phone calls from BMI’s Nashville office to the Trunk Space -- including the one with the “or else” warning -- “are polite all the way through.”
Bailey says that BMI -- which raked in $900 million in assets last year -- pays an undisclosed hourly wage to representatives. Some are flown into town from one of their offices, while other DJs and musicians here in town are hired for a night’s pay. He says that each BMI rep anonymously enters the venue and documents an establishment’s music with concealed microrecorders.
ASCAP uses similar tactics. Carrico of Trunk Space says that a few years ago, two ASCAP representatives, who looked straight out of Men in Black, paid a visit to the venue during a noise show. The usual crowd of kids in their late teens and early ’20s, some of them running around in bare feet, started making fun of the men for wearing fancy suits in the DIY venue. After listening to a couple of the truly bizarre bands, the men, apparently satisfied and definitely out of their elements, thanked Carrico for her time and left. Trunk Space hasn’t heard from ASCAP since.
Someone who has repeatedly heard from ASCAP is Al Flores, former proprietor of Big Al’s, a spot that he ran just for fun. A few years ago, Flores, a personal injury and criminal attorney by day, was slapped with a lawsuit by ASCAP and settled out of court. Flores says ASCAP representatives visited his bar and told him he would need to pay fees for the jukebox. (Flores later found out that this was untrue, and that the jukebox company already pays that cost.) Then, the reps secretly crept out of the night and into the bar during karaoke and noted that two ASCAP-protected songs were played, carrying a $3,000 fee per song. A few days later, they filed a lawsuit for the violations, which included three years back pay and attorney fees. Flores ended up paying $11,000 to dump the lawsuit because, he says, “I didn’t think I had a chance of winning because the law is pretty cut-and-dried.” Flores says that the fine he paid to ASCAP contributed to the bar’s closing.
But get this. After Flores’ legal beat-down at the hands of ASCAP, they tried to recruit him to come on board to help locate local venues that violate ASCAP policies. “I politely declined by telling them to go fuck themselves,” says an obviously-still peeved Flores. (Repeated calls and e-mails by New Times to ASCAP regarding this lawsuit were not returned.)
From a legal standpoint, local club owners can’t really do much except try to establish that they’re not hosting performances of copyrighted songs. And as attorney John Hay points out, “It’s very difficult to prove that you’re not [playing copyrighted material].”
Perhaps the next best thing venue owners can do is laugh in the faces of these corporations’ hired guns when they make their rounds. Recalling the night two ASCAP suits came into Trunk Space, Carrico says, “We told them that we mainly dealt with avant-garde and experimental music and that we didn’t play any copywritten material. They told us that Frank Zappa was covered under ASCAP, which we all laughed at. They kind of got more uncomfortable as we were laughing at them. Then [Trunk Space co-owner] JRC said that we once had someone drag a metal table across the floor with contact mics and asked, ‘Could someone really copyright that?’”
At least some venue owners see the humor in the whole thing.