APPENDIX BMI
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I was well aware that few, if any, have ever won a lawsuit against ASCAP or
BMI. But I am not easily intimidated. I researched 63 years of copyright
case law and began contacting attorneys. Many were willing to talk with me.
But none were willing to take the case. Every lawyer I talked to urged me to
look at RICO, a federal law which stands for “Racketeer Influenced and
Corrupt Organizations.” The actions of BMI, demanding money from my
employers for my performance of my songs, appear to fall within the
definition of extortion as incorporated by RICO: “the obtaining of property
from another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right.”
Under case law, it does not matter whether the attempt was successful;
attempted extortion is extortion. Knowing that making a federal case out of
this would be expensive, stressful, and time-consuming, I sought help from
elected Democrats and liberal groups. I was turned down by Senator Charles
Schumer, Senator Hillary Clinton, New York Attorney General Eliot Spitzer,
the American Civil Liberties Union, the National Lawyers’ Guild, and
Volunteer Lawyers for the Arts. Then, on New Year’s Eve, I received a letter
from Congressman John McHugh (R, NY).
At first I thought it was a bulk mailing. I was irritated to receive it from
a politician who had not even answered my inquiry. I was in for a surprise.
Congressman McHugh had forwarded my letter to the United States Copyright
Office and had elicited a response from Marilyn Kretsinger, Assistant General
Counsel. I should not have been surprised. John McHugh had stood up for
north country artists before, and no doubt he will do it again. Marilyn
Kretsinger upheld each of my contentions. In her words, “BMI has the
authority to issue a license only for those songs that are in its catalogue
of representation.” If the performance venue does not “publicly perform
songs represented by BMI,” then a BMI license is not needed. She further
stated: “With respect to the musical compositions that Mr. Phillips has
authored, no performance license is necessary since Mr. Phillips is the
copyright owner of those songs.” With respect to traditional folk songs in
the public domain, if I am “not performing a copyrighted arrangement of a
public domain folk song, then a BMI license is not required.”
The opinion has far-reaching implications for independent musicians and for
the entrepreneurs who hire them. No venue is in need of a performance
license unless one or more of its musicians are performing compositions or
arrangements copyrighted and licensed through ASCAP, BMI or SESAC. The
copyright owner enjoys exclusive performance rights and, therefore, the
exclusive right to profit from their performance. The point is so obvious
that it has never been litigated, which makes this a landmark decision. The
full texts of the Copyright Office opinion and all related correspondence are
available online at http://www.northnet.org/minstrel, Appendix BMI. But I
never did get my job back. The restaurant owners have decided not to have
any live performances or to play any recorded music. To them it is not worth
the hassle. The customers must settle for radio and television. And I have
not found such a lucrative job since. Such is the legacy of BMI.
For another exposé on ASCAP and BMI see "All Shook Down," by Joe Pastoor, in
Rake Magazine: http://www.rakemag.com/features/detail.asp?catID=46&itemID=9106
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