APPENDIX BMI
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An ASCAP employee, “very high up” in the organization, was told of my
situation and, at first, was not at all sympathetic. “This story does not
sound right,” he said. “ASCAP would not be able to sue the establishment for
not paying performance royalties without the cooperation of the songwriter.”
I assured him that the story was true. “Perhaps BMI does not play by the
same rules,” I said. “They were demanding money from MY employers for MY
performance of MY songs. BMI certainly did not have the cooperation of the
songwriter. It was BMI that was guilty of copyright infringement, and their
actions meet the legal definition of extortion.” He gave a rather flippant
response, which he later retracted: “If the fees paid by a club to ASCAP
members for the use of their copyrighted music are enough to drive that
nightclub out of business, then that club was teetering on the edge of
insolvency anyway. ... The average fee for an ASCAP blanket license for a bar
or restaurant is about $500.00 per year. ... It's funny how some bar owners
are willing to pay for everything they use, except for the music, which is
why many people come there in the first place.” Actually, the owners of the
restaurant refused to buy a BMI license for live performances not because
they were “teetering on the edge of insolvency.” The restaurant is a success
story, having grown from an ice cream parlor to a lunch and dinner
restaurant. They have the largest wine list in the Hudson Valley, and they
also own a liquor store. They refused to buy the license because they had no
live performers who were singing or playing any ASCAP or BMI material. That
the license is cheap enough to be affordable is beside the point. I can
afford to pay more taxes than I do without falling into bankruptcy, but why
should I pay what I do not owe?
Moreover, ASCAP has horror stories of its own. In 1995 ASCAP sent letters to
6,000 summer camps, including the Girl Scouts, informing them that they had
to pay royalties for “public performances.” Copyright law defines a “public
performance” as a place “where a substantial number of persons outside of a
normal circle of a family and its social acquaintances is gathered.” ASCAP
did not specifically say that it wanted to charge for singing around the
campfire, but the damage was done. For ASCAP it was a public relations
disaster. And some Girl Scout leaders are still afraid to sing “Puff the
Magic Dragon.” In 1992 an ASCAP undercover agent caught a piano player at a
New Jersey restaurant playing George Gershwin’s “Rhapsody in Blue” without a
license. ASCAP sued the restaurant and settled out of court for $5,500.
ASCAP has been known to threaten legal action for the singing of “Happy
Birthday.” How do they know? Harvey Reid, a musician based in Maine,
explains it well. ASCAP and BMI have field agents on payroll who listen to
the radio and watch the newspaper listings. When a new venue starts offering
live music, an agent will either show up in person or write a letter
demanding money for the license. “If a nightclub or even a store refuses to
buy the license, then ASCAP or BMI will hire spies, often local music
teachers or semi-professional musicians who will make notes and testify in
court as expert witnesses that on a certain date at a certain time a certain
song was indeed played. ... Note that even though the musicians or the
employees decide what is played it is the owner of the establishment where
the music is played who gets sued.” To see the full text of Harvey Reid’s
article, “ASCAP and BMI: Protectors of Artists or Shadowy Thieves?” go to
http://www.woodpecker.com/writing/essays/royalty-politics.html.
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