December 31, 2001


In a landmark opinion, the United States Copyright Office has
affirmed the right of musicians to perform original compositions
copyrighted in their own names, and traditional music in the
public domain, anywhere they want to, whether or not the venue
has a license from ASCAP, BMI or SESAC.  The opinion comes in
response to an inquiry from Congressman John M. McHugh (R, NY)
on behalf of Richard Hayes Phillips, a performing musician.

Mr. Phillips had lost a job as the only musician at Schemmy's
Restaurant in Rhinebeck, New York, after the owners received
a series of threatening letters from BMI, a worldwide publishing
empire that, along with ASCAP and SESAC, owns the rights to
"virtually" every song published in the United States.  BMI had
demanded that Schemmy's pay an annual license fee, over and
above what they might be assessed for the playing of recorded
music, or cease the live performances.  Mr. Phillips has never
joined ASCAP, BMI or SESAC, nor does he perform any songs
licensed by them, nor has he assigned his copyrights to anyone.
He decided to contest BMI's demands.

Marilyn Kretsinger, Assistant General Counsel at the Copyright
Office, upheld each of Mr. Phillips' contentions.  In her words,
"BMI has the authority to issue a license only for those songs
that are in its catalogue of representation."  If Schemmy's
does not "publicly perform songs represented by BMI, then
Schemmy's need not obtain a BMI license."

Ms. Kretsinger further states, "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 he is "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.

Richard Hayes Phillips
4 Fisher Street
Canton, NY 13617
email: richardhayesphillips@yahoo.com

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