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June, 2016


by Webmaster

I received an email from Warren Floyd, a professional musician. It caused me to think about a problem I've observed since I started performing with bands, 16 years ago. (Warren's comments are indented and italicized throughout this column.)

The music licensing agencies are now gathering information from my web site to find out where I'm playing and then targeting those restaurants, bars and clubs for over-the-top fees, forcing them to stop hosting live music. Unfortunately, I can no longer post my schedule on my web site.

When people record my songs, they have to pay me for each song based on the number of CDs they produce and sell. This is mechanical licensing. I get paid for being the songwriter and for being the song publisher.

When people perform my songs, they don't have to pay me. They don't even have to give me credit for writing the song. If my songs are performed in a venue or played on the radio, I should collect performance royalties.

Performance royalties for songs are paid into Performing Rights Organizations (PROs) by radio stations, venues, and TV networks. The PROs distribute the money to the songwriters and publishers who are members of their organizations. The intent is to help songwriters get paid for the use of their songs.

This is great, in theory.

“In theory there is no difference between theory and practice. In practice there is.” — Yogi Berra

Unfortunately, the PROs don't distribute the money equitably. In part, it is due to the radio stations and venues, not all of which report what they play or what is performed in their venue. But, even if every performance of every song were reported, some songwriters whose songs were aired or performed would still not receive any royalties.

ASCAP's policy is to distribute 80% of the performance royalties to the “top” songwriters and publishers. I was told it was the top 20% when I was an ASCAP songwriter and publisher, 20 years ago. They determine who the top songwriter and publishers are. They determine who the bottom 20% of the songwriters and publishers are, and those people get nothing. No matter how many times their songs are performed and played, they get nothing.

ASCAP claims that 80% of the money collected goes to the artists. I don't believe that for a second. Perhaps 80% after expenses might go to the artists. But in reality it goes to the top 200 grossing artists. So if I play a Townes Van Zandt song it goes to Paul Simon, Paul McCartney, Bruce Springsteen, Bono, Brian Wilson etc.

A side note, the rent on the ASCAP offices in NYC are over $400,000 a month.

BMI is friendlier to those of us who are not in the top 200 or 20%. They have a program, BMI LIVE, which allows performing songwriters to enter their venues and song lists and get paid quarterly for the original songs they perform. It does not pay them for their songs which are played by other artists, unless the other artists are also members of BMI LIVE and spend the time to give their fellow songwriters credit. If I attend a show in which someone performs my songs, I can NOT enter it into BMI LIVE because I didn't perform it or I wasn't part of a band that performed it.

The PROs look at the venues which hire me and other songwriters like me, and demand that they pay performance royalties on my songs, money which I will never receive. (I'm fairly certain that BMI uses BMI LIVE entries to locate venues so they can demand payments from them.) They say that it's in my interest, to protect my rights as a songwriter.

A wine bar in Centennial, where I play on a regular basis, was contacted buy ASCAP. They decided they would only host original music. ASCAP told them, "We do not have the staff to come out to make sure your performers only play original music so you need to pay us anyway." My car will do 100 mph but you can't arrest me because I have the ability to drive that fast through a school zone. Likewise, you can't arrest someone who owns a gun because they have the ability to rob a bank.

ASCAP also told one club owner who told them they only do original music, "Do you know every song ever written? How do you know he is only playing his own songs?" Does the ASCAP [representative] know every song ever written?

But wait, it gets worse. I play coffee houses. Not Starbucks, but small Mom-and-Pop coffee houses, in small communities. Their seating capacity might be 15-20 people. I play in locally-owned and -run restaurants with my band. These restaurants might have a seating capacity of 60-70 people. The PROs will charge them fees based on the seating-capacity of the venue. BMI groups seating-capacity. The lowest fee seating-capacity group is 0-250 people.

Forcing small coffee houses to pay a much as a 250-seat concert hall, at which tickets are sold, puts coffee houses out of business. I've seen it happen too many times in the last 16 years.

Flights in Morrison got the paperwork and did the math. The formula showed they owed about $100 a year and they did not have a problem with that but were then told there is a $975 minimum! The one size fits all really means one size doesn't fit all.

To add more injuries to small venues, venues have to buy licenses for BMI, ASCAP, and even SESAC (initially overseas royalties).

They put pressure on a club because the band played Uncle Pen by Bill Monroe. Bill Monroe was a BMI artist but ASCAP said the arrangement played was a Ricky Skaggs arrangement who is an ASCAP artist so the club owed them for that.

What's the end result? More money to songwriters? NO! Far less money to songwriters because we can't find venues in which to get paid to play our songs and sell our CDs.

The threats they have made to local bars is unbelievable. I lost three gigs last year because of them; two in the last two weeks of the year. They called up places asking for their fees and specifically mentioned my name and web site as the source of their information.

The PROs have shut down so many venues, at this point it is almost impossible for a performing musician to make a living.

With this attitude, they are not only preventing musicians from playing cover songs, but they are also denying musicians who are writing songs a place to present them. These are the very people that should be encouraged to pursue their writing as potential ASCAP members.

PROs are no longer about the rights of songwriters. They are about making gross (in every sense of the word) profits. It's big business and the little guy is being deliberately shut out. Any who attempts to defy ASCAP discovers that the jurisdiction is automatically transferred to New York City, ASCAP's home town.

The agencies are legally allowed to collect their fees but their tactics and threats are not legal. There has not been one successful lawsuit against ASCAP. They have deeper pockets and can fight forever and the small place just gives up the fight.

In a time when corporations have more rights than people, and privately-owned business are being eliminated by giant corporations, it's hard to find a solution. Money rules, and the PROs, especially ASCAP, are big business.

I do not argue that they should exist and that they have a job to do, but they are way out of control.

The 20 or so amateur musicians who attend the weekly jam at a music store in Denver put money in a can every week to pay the PROs for the right to gather and play music.

Wyoming and Nebraska have successfully banned ASCAP from operating in their states. If WY and NE can shut them out, Colorado needs to do it too.

Due to the availability of music on the internet, with the proceeds (such as they are) directly to the songwriter-performers, the PROs are not making as much money as they used to. They need to make up the income somewhere, and they're doing it at the expense of the songwriter-performers.

How do we, as performers, build our fan base and fill our venues with our fans if our attempts to advertise result in the elimination of the venues where we work?

How does benefit it's members, if publicizing their events ultimately causes the venues to close their door, either permanently or to performing musicians?

Because of what happened to Warren, I asked the members of AcousticByLines if they want me to continue to publicize their events.

"I have had 4 different venues shut down by ASCAP- 3 for the Bucktones, and one personally. They come in to the restaurant or bar and threaten them with lawsuits unless they pay the licensing "fee", which starts at about $200 per month. The first time they show up, they just ask the owner to sign up. The second time, they bring lawyers, and threaten to close the business. No musician I have ever talked to has ever received a nickel from these organizations from these "fees". All they accomplish is to put local musicians out of work. Since these organizations are not raking in the money they used to, they are looking for other means to keep on making money!

“You can keep posting any event I have, as I am sure that all of the ones I am doing now have already paid their 'fees,' or are non-profit organizations." — Founders: Bands, Singers, Songwriters, Solo Performers, Sidemen, Instrumentalists, Performers, Entertainers, Musicians, Places to Hear Acoustic Music, Locations, Venues, Clubs, Festivals, Business and Services Supporting Acoustic Music, Music Stores, Musical Instruments, Music Teachers Jerry Grannell Jerry Grannell: Bands, Singers, Songwriters, Solo Performers, Sidemen, Instrumentalists, Performers, Entertainers, Musicians

I don't publish Warren's gigs on any more. He needs the money and I don't want to cause any more of his venues tp be shut down. I wrote this column a few months ago, and hesitated to publish it because of the increased attention it might draw to the venues that still hire live musicians.

But I see this as a problem and I feel that I have a right to free speech. No one has to pay performance royalties on that, yet.

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