And the Wind Cries, ‘Pay Me!’… The Story of ASCAP And Why Some Corvallisites Are Living in Fear
Restaurant and bar owners in Corvallis – and around the country – are terrified. Not of the economy, zombies, Justin Bieber, or brutal Mob thugs… although the latter is an apt description. They’re afraid of a rogue songwriters association, which hyper-zealously pursues every penny it can shake down. This is the story of ASCAP – the American Society of Composers, Authors and Publishers – and the hardworking small business owners they extort. A disturbing number of Corvallisites approached for this story refused to comment, even off the record, out of fear of retaliation from ASCAP.
Songwriters should get paid for the songs they write. Nobody disputes that. Unfortunately ASCAP, the world’s second largest music publishing company, operates a business model equivalent to squeezing water from rocks. As a rule, they leave no stone unsqueezed.
Alan Durant owns a restaurant just outside of town. He relays harrowing tales of confrontations with ASCAP. “They’ll come in, they will smile, and they’ll say ‘I’m so and so, and I rep for ASCAP, do you have just a minute where I can sit down and talk to you?’ That’s the start of you getting screwed.”
WHY ASCAP EXISTS
Music licensing companies collect royalties from radio stations, businesses where music is played, and other entities of the sort, and then pays that money to the original songwriters. In addition to ASCAP, there’s BMI (Broadcast Music, Inc.) and SESAC (Society for European Stage Authors and Composers). According to Durant, “ASCAP has always been the aggressor… I’ve been around long enough to know the wrath of these pricks.”
Durant recalls narrowly averting an enormous ASCAP fine, “I had a bluegrass group that I booked, from the Grand Old Opry I believe… I had a bad feeling about it, because ASCAP was really huffing and puffing down my ass… I was on my third warning of ‘You’d better sign up with us, or else!'” He relented before the show, signing a contract with ASCAP, paying their license fee. He found out later ASCAP planned to send someone undercover to the show. “If [the band] played any copyrighted stuff, for every tune they played, [ASCAP] would hit me for either $10,000 or $12,000 per song. Let’s say they played 5 songs, I’d lose my ass, I’d have a judgment against me for maybe $60,000.” He now pays around $2,000 a year, between ASCAP and BMI, to have live music in his restaurant once a week. “They increase it every year.”
ASCAP’S SIDE OF THE STORY
ASCAP’s Executive VP of Licensing, Vincent Candilora, explains his company’s practices, “(I)t’s essential to understand that ASCAP provides an important service both to our members and to the hundreds of thousands of licensees that take out an ASCAP blanket license every year. Ever since the 1917 Supreme Court decision that upheld our right to license performances of our members’ music in bars and restaurants, businesses that use music have had a legal obligation to obtain permission from the copyright owner. An ASCAP license makes it incredibly easy, efficient and affordable to legally play the 8.5 million+ songs in our repertory. And I want to emphasize affordable – we determine our license fees individually based on how a business uses music and its size, capacity, et cetera. Smaller operations may pay as little as a dollar or two a day.”
Two dollars a day, of course, is $730 a year. Durant believes small businesses should be exempt. “Do it in a way so places that don’t make any money, or make hardly anything, aren’t subject to this. Any business that can show they make under, say $400,000 a year, [shouldn’t] fall under those rules, so you can have guys playing for tips in a little coffee shop. Otherwise, they don’t do it, guys get scared away… Music, the beloved thing of our soul? The way the copyright law is written is stifling!”
Candilora insists, “The vast majority of establishments we approach recognize that using music is vital to the total service they offer–both in attracting customers and in driving revenue. They see the ASCAP license as a normal and expected cost of doing business. So why shouldn’t we seek to license restaurants or bars that are breaking Federal law, when others willingly comply? How can one business claim music has no value to its bottom line, when hundreds of thousands of others acknowledge just the opposite?”
THE TRUTH OF THE MATTER
The reality is a string of ruined businesses in ASCAP’s wake, including one Oregon bar forced to shut its doors forever, after a local band played three covers one night, including Jimi Hendrix’s “When the Wind Cries Mary.” Unfortunately, an ASCAP rep was munching a sandwich at the bar when the offending songs were strummed. The bar hadn’t paid an ASCAP license fee, so they were slapped with over $30,000 in fines. Facing bankruptcy, the owner shuttered his business.
Perhaps ASCAP’s most notorious ploy came in 1996, when they tried to force campgrounds to pay a license fee for campfire songs. The ensuing public relations debacle included damning images, broadcast around the country, of Girl Scouts dancing the Macarena in silence.
ASCAP sued cellphone companies, trying to get paid for every ringtone rung. They also charge for on-hold music. According to their website, “When you place a caller on hold and transmit music via your telephone lines, that is a public performance of the music. It is your responsibility to obtain permission…” The website lists dozens of license categories, including carnivals, Jewish community centers, indoor playgrounds, roller derby, and funeral homes. Apparently, the only things guaranteed in life are death, taxes, and having ASCAP collect money for songs played at your funeral.
Candilora says, “Ultimately our responsibility is to the more than 470,000 songwriters, composers and publishers that entrust us to represent their music, and compensate them when it’s used. We are not some faceless corporation randomly demanding money from a local small business. ASCAP operates on a not-for-profit basis and we are a society owned and operated by – and for – people who create music. Our sole purpose is to support and promote the creation and performance of music.”
A LOCAL ASCAP SNITCH?
In Corvallis, rumors abound around town about a local resident working as a “narc” for ASCAP, supposedly outing local businesses for playing songs without paying. The Corvallis Advocate tracked him down for an interview. Tony Moonshine insists his position has been grossly distorted. “I don’t work for ASCAP… I’m simply an independent contractor with ASCAP, which means I can put on a concert, and have it licensed by ASCAP, anywhere where the business is not making money.” He promotes live performances at a local music store, under a special low cost ASCAP license which stipulates the business must be closed at the time of the show, “Because if he sells a guitar while there’s a concert going on, they can say, ‘Ah, people come to hear ASCAP music, you sell a guitar, therefore [you owe us money].'”
As for ASCAP itself, Moonshine says, “It’s a necessary evil… basically they are the vehicle by which performers get royalties for performances of their material. You can’t possibly monitor all the radio stations, right? So, the radio station pays fairly hefty license to ASCAP, BMI and SESAC… everybody that belongs to ASCAP pays dues, to be an ASCAP member, and they in turn look out for your interest. But, of course, most people pay dues, and don’t ever get anything back. But, if your material gets into rotation on playlists on stations, through some formula they have calculated, then you fall into a category that gets paid royalties.”
He acknowledges, “They also have to license… performances, and essentially anywhere where they can connect creative property to somebody making a profit. Of course, there’s the big gray area — how much profit is actually really connected to it?”
“The people who pay an ASCAP fee are the establishments that make the money. Restaurants, bars… that’s where the push is being felt in this area. It’s not brand new. I lost a job because of ASCAP, at the time when I was an ASCAP writer, because the establishment refused to buy an ASCAP license. So, their choices was either stop having live music, or prepare to defend themselves in court… It’s extortion.”
Moonshine recalls a local wine bar, approached by an ASCAP rep demanding $800 a year for music being played there. “The owner basically told them ‘Go fly a kite, I’m not paying,'” The rep informed the owner that if any ASCAP material is performed there, they’ll take him to court. This had a chilling effect, as the owner warily canceled all live music – even songs in the public domain. Moonshine offered to present a playlist before every set, confirming he’d only play public domain material. The owner said to him, “They can still file a suit against me, then I’ll have to prove that I didn’t [allow ASCAP songs to be played].” Another thriving music venue was silenced.
DON’T MESS WITH THE MOB
“There’s this sort of Mafioso sort of appearance to this, because they’ll come in to a town like Corvallis, and they check out all the restaurants and bars, and find out who’s got live music, and who’s licensed to use that music,” Moonshine explains, “They’ll see a new restaurant, they’ll go in and talk to the folks, and they’ll say ‘How many nights a week do you have music? What’s the average price for your drinks and your meals?’ They have this formula where we can assume that because you have this live music, a certain percentage of your income is related to it… so then they say, ok, to have access – to be able to play anything in the ASCAP catalog – [purchase] a performance license, so much money per year.” He acknowledges many businesses end up abandoning live music, to avoid paying license fees.
Therein lies the rub. Under the guise of supporting songwriters, ASCAP effectively guts local music scenes, from sea to shining sea. In the deafening silence left in their wake, you could hear a pin drop.
CREATIVE COMMONS: A LICENSE FOR EVERYONE
An alternative to traditional song licenses, Creative Commons “refines the right of copyright,” offering creative creators flexibility in how their songs/art/etc. are shared. Six distinct CC licenses are available, depending on if the creator wants to allow others to alter their work, or allow the work to be used for commercial purposes. The creator can also stipulate people altering their work must “share alike” the finished product. The most open version of a CC license is the CC0, which allows owners the “choice to opt out of copyright and database protection, and the exclusive rights automatically granted to creators.” Check out: http://creativecommons.org.
*** NOTE: With the exception of ASCAP VP Vincent Candilora, all names have been changed to protect their privacy.