July 18, 2001

John M. McHugh, District 24
The Cannon House Office Building
Room 416
Washington, D.C. 20515

Dear Mr. McHugh,

I write to you as a constituent asking for help.  I am, among other
things, a professional musician, both a composer and a performer.
I sing and play unamplified acoustic music in restaurants and
coffeehouses.  My repertoire consists entirely of original
compositions copyrighted in my own name, and traditional folk songs
in the public domain.

I recently lost a lucrative steady job as the only  musician at
Schemmy's Restaurant in Rhinebeck, New York.  The owners had
received a series of threatening letters from Broadcast Music, Inc.
(BMI), a multinational publishing empire which, along with ASCAP,
owns the rights to "virtually" every song published in the United
States.  The owners were told to pay to BMI an annual fee, above and
beyond what they might by assessed for the playing of audiotapes, or
else to stop the live performances.

BMI is acting under color of the Copyright Act, which grants to the
"copyright proprietor" statutory damages for copyright infringement.
The author or composer, on becoming a member of ASCAP or BMI,
assigns his or her performing rights to ASCAP or BMI.  Until then,
the copyright owner retains the exclusive right of public
performance.  I am not a member of ASCAP or BMI.  Neither one owns
any rights to my compositions.  I am the exclusive copyright owner,
all rights reserved (although some of my songs are co-authored,
none of my colleagues have joined ASCAP or BMI).  They have no legal
basis for demanding royalties or damages  for the public
performance of any of my compositions.

In regard to traditional music, one cannot take the text of a work
in the public domain and copyright it.  There may be a valid
copyright if there is a similar work in the public domain, since in
copyright law, originality alone is the test of validity.  However,
the public would not thereby be shut off from the use of the work in
the public domain.  A song in the public domain remains there
forever.  I have carefully preserved over the years photocopies of
nearly every traditional song in my repertoire, in order to prove
their antiquity.

Every lawyer I have talked to has urged me to look at RICO, a
federal law which stands for “Racketeer Influenced and Corrupt
Organizations.”  RICO incorporates by reference the definition of
“extortion” under Title 18, Section 1951: “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 or not the
attempt was successful, and no specific amount of money need be
established; attempted extortion is  extortion.  RICO also
incorporates by reference the definition of “mail fraud” under
Title 18, Section 1341.

I have also been advised to look into First Amendment violations.
BMI can argue that I am at liberty to sing my songs somewhere else,
or at Schemmy’s under certain conditions, but BMI has infringed
upon my right to perform them, and infringement is all that is
necessary to establish a First Amendment violation.  I have also
been advised that BMI has damaged my property rights, as my
copyrights are property; my civil rights, as my right to perform my
own music is a civil right; my right to due process, as no person
may be deprived of life, liberty or property without due process of
law; and my right to conduct business and engage in contracts.

After two letters (see enclosures) and a series of telephone calls,
no one at BMI is willing to concede my right to perform original
compositions copyrighted in my own name, and traditional folk songs
in the public domain, anywhere I want to, whether or not the venue
has a license from ASCAP or BMI.  Consequently, I am unemployed.

Making a federal case out of this would be expensive, stressful, and
time-consuming.  I am willing to travel that route if necessary, but
before I do so I ask that you offer your services to help in some
way to resolve this matter.  In order to protect myself I need a
statement, in writing, whether from BMI, a government official, or a
federal judge, that it is lawful to do what I have been doing.
I anxiously await your reply.


Richard Hayes Phillips
4 Fisher Street
Canton, NY 13617

See Table of Contents See Previous Go to next page