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Wednesday, November 30, 2011


I think it should say "We Create Liability and Misery"
I was recently involved in a discussion about the usefulness of ASCAP.

ASCAP is group owned by composers and musicians that enforces royalty collection.

In times gone by (like the 1950's, 60's and 70's) its primary function was to track the playing of songs on the radio for royalty purposes.  The idea is that when a song is played on the radio the composer, musicians, etc. associated with the song are entitled to payment.

Of course radio stations, wanting to save money would simply play the song without paying.

I had a friend who was a professional musician.  When not on tour or in the studio (he was a band member - not one of the front men) he would occasionally get jobs at ASCAP listening to tapes of radio programs.  The purpose was for him to identify songs that weren't on the playlist so that royalties could be collected.

Since that time ASCAP has expanded exponentially.

The reason, of course, is that music sales are drooping substantially - particularly the old vinyl/CD model of paying $17.99 at the Borders for the latest music.

The modern "Mix, Rip, Burn" model along with iPods, etc. has basically reduced the business model to junk.  Now one person gets the music, converts it to an MP3, emails it to all their friends and what was twenty CD sales is now one iTunes download.

Now I am a musician and I have a CD out - but I do not support ASCAP.

(I believe that ASCAP does not benefit musicians except very indirectly and that its mostly about big business screwing musicians.  If you live off your ASCAP royalties good for you.  But I still don't like how it works...)

There are two reasons for this.

1) The traditional business model of screwing the musician (by paying a 2% royalty after "expenses") is pure BS.  In 97% of the cases only the label ever makes any money.  The musician ends up in debt.  Its a bad investment in terms of your talent and time.

While this model worked when access to radio was the only means of getting your music heard today's world is different - you can easily promote yourself without a label - for a very low cost.  (Basically this is really a label issue -  but ASCAP is really a tool of the label in my opinion.)

2) ASCAP goes after everyone these days for a "license".  From their perspective they need to collect money for any public performance.  According to their site "A public performance is one that occurs either in a public place where people gather (other than a small circle of a family or social acquaintances). A public performance is also one that is transmitted to the public, for example, radio or TV broadcasts, and via the Internet."

The problem here is not what I will call traditional licensing - radio, professional music performances, and so on.  Its the vagueness of this and the fact that according to their idea of licensing virtually any utterance of a song where someone else not in your family hears it is a "public performance" that creates an obligation to pay ASCAP.

Now this is really pretty stupid.

I could go to the ASCAP headquarters and sing a "licensed" song and ASCAP would have to pay the artist.

Why?  Because according to their own web site I had produced a performance requiring a royalty payment.

I could sing on a bus and ASCAP would have to pay.

I could sing in a church or school.

ASCAP goes after places where people play music unprofessionally - like bars - and tries to get them to pay with the threat of legal action if they do not.  (A guy making a living off his $100 solo performance in my mind is not "stealing" from ASCAP or the musician.)

The internet is ripe with stories of ASCAP shutting down (stopping music) at bars, coffee houses, etc.

All because bands or performers are playing "licensed" songs.

But even at a bar without a band or performer if the patrons simply burst into a song because their team scores a touchdown or because of a birthday ASCAP could claim royalty payments.

This to me is wrong.

1) Its wrong because musicians learn by playing cover songs in bars - if you require that the bar pay substantially for allowing this education to happen the process will stop.  ASCAP wants a lot of license from bars for this privilege and most bars cannot afford it.

2) Its wrong because it requires the bar to know the difference between a cover and an original.

3) Its wrong because its arbitrarily and randomly enforced (basically its enforced where ever ASCAP thinks it can make a buck - and you can bet that the "cost" of the enforcement will far exceed any royalty paid to the musician).

The ASCAP perspective makes all of us "criminals" in their eyes - playing covers, singing at a birthday party, and so on.  There is no requirement that the performance be a paid one - only that there be a "public performance" as defined above.

What is interesting is that now the Obama administration is interested in making everyone a snitch in this regard (see this article).  Stealing music (which includes playing a cover song in a non-ASCAP-licensed bar) is an "Intellectual Property Crime" according to the Attorney General Eric Holder “Fortunately, we can all be part of the solution. Anyone who suspects an IP crime can visit,, or to report suspected offenses,” Holder said. “The public’s proactive attention to these issues can help us to disrupt the sale of illegal goods; to prosecute the individuals, gangs, and international criminal organizations that profit from these activities; and to stop those who would exploit the ingenuity of others for monetary gain.”

So if you go to your neighbors house and hear someone singing a poteintally copywritten song Eric Holder wants you to go home and report them on "".  Ditto for bar music.  Ditto for that church music (worship services are not exempted).


Thanks Big Brother - this is all really quite troubling...

We are all criminals now...

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