June 22, 2001
Dear Mr. Stamm,
This letter is a follow-up to a number of telephone conversations
with BMI personnel, all of them spirited, one of them contentious.
BMI’s approach to Schemmy's Restaurant has been intimidating, and it
may well cost me my job. There are few business owners who will
stand up for the rights of their musician, who is generally seen as
a non-essential employee. Therefore, to protect myself, I need a
statement, in writing, confirming that I am at liberty to perform my
own songs, copyrighted in my name, and traditional folk songs, in
the public domain, anywhere I want to, whether or not the venue has
a license from BMI. If I cannot get such a statement from BMI, then
I will have to seek such a statement from the courts.
This is what one BMI employee told me today: "The burden of proof
is on the business owner to prove that they do not have any
licensable BMI music." I found this statement untenable because:
(1) it is the musician, not the business owner, who knows the
origins of the songs being performed; and (2) it smacks of the
Napoleonic code, "guilty until proven innocent," which is contrary
to the American system of justice. I was astounded at the suggestion
that the business owner should examine a list of 4.5 million
songs claimed by BMI in order to see if my songs are included.
I was asked how I know that no musician at Schemmy’s is performing
licensable BMI music. I answered that I am their only musician. I
was asked how I know that the songs I sing are not licensable BMI
music. I answered that I wrote them myself. I was told that if the
songs are copyrighted, the rights are owned by ASCAP or BMI. I
answered that I copyrighted them myself by sending the proper forms,
together with a tape and a $20 check, to the Library of Congress.
Your employee did not seem to know that this is possible.
I was also told that songs in the public domain can be copyrighted
by musicians affiliated with BMI and effectively taken out of the
public domain. I know of at least one federal case in which the
court ruled that if the antiquity of the song can be proven, the
copyright fails. I know of numerous examples of famous musicians
claiming authorship of songs that they did not write, and I can
prove it. The songs were, and still are, traditional.
Also, I would like to know if songwriters can grant themselves
permission to perform their own compositions even if they are
copyrighted through BMI. I await your response.
Richard Hayes Phillips
4 Fisher Street
Canton, New York 13617