Performance Rights Organizations are not what they seem
(This is a re-posting of an old blog post I wrote back in 2009. It was originally on MySpace, but Timberlake went and killed the Blog section of MySpace, so I had to repost it here.)
I wrote this essay to educate and enlighten my fellow songwriters about the dangers of joining a Performance Rights Organization. Below is my personal account of how ASCAP used illicit means to acquire money from small venues in my hometown, at the expense of its songwriter members and under the seemingly false moniker of an advocate of musicians’ rights. The words written below are my own personal opinion and point of view. Feel free to leave similar stories, etc. in the comments section of this blog.
When I was an impressionable music business student at University of Delaware, I was told over and over again to become a member of a Performance Rights Organization (or PRO). The “big three” PROs are ASCAP (American Society of Composers and Publishers), BMI (Broadcast Music, Inc.), and SESAC (Society of European Stage Authors and Composers). The purpose of these organizations is to collect royalties from venues, radio and television stations, and other entities, and disseminate those funds to songwriters, publishers, and other artists whose works are played at/on those entities. Sounds good, right?
Upon graduating and becoming a part-time professional musician, I did what I thought was best for me to do as a songwriter by becoming a member of ASCAP. After all, it was free to join, and I was eager to cash in on any revenue streams, which include royalty payments.
My troubles with ASCAP were almost immediate. First, I encountered extremely poor, almost non-existent, customer service. Whenever I called and left a message, it was never returned. Whenever I did get someone on the phone, they were rude, short, and rarely answered my questions.
Next came the royalty statements reading “zero,” meaning zero plays and zero dollars. This baffled me, because I knew that I was getting airplay on several radio stations, both traditional and web-based, and on television stations. And I knew that some of those stations were reporting their playlists. And I knew those stations paid dues to at least one, or all, of the PRO organizations, because they have to by law. Despite all of this, I never saw a dime in deserved royalties from ASCAP.
In 2009, I left my day job to become a full-time musician. It was at this time the dark side of ASCAP and its policies were revealed to me.
I was invited to play a laid-back coffeehouse show in my hometown for donation money. I played all original material (or, in other words, songs that I wrote and to which I held all rights). Weeks after the show, I was contacted very unprofessionally by the venue’s manager, who berated me for performing “copyrighted works” and putting her employer in danger of being fined $30,000 per performed song that was registered with ASCAP. (Yes, you read that correctly: $30,000 per song).
Apparently, this little venue had dodged paying dues to ASCAP and the other PRO organizations by hiring 100% original and traditional musicians (traditional meaning that the songs are in the “public domain” and no longer under copyright from any one individual. These would include very old songs such as Irish/Scottish tunes, Native American songs, etc.)
At first I laughed, thinking it was some sort of misunderstanding: there was no way ASCAP could fine a venue if all the songs I played were my own. I had agreed not to play any covers that night; every song I played at the coffeehouse was my own, and I held the rights to play them, not ASCAP or anyone else.
I tried to calmly explain this to the coffeehouse worker, but she shot back at me more unprofessional gibberish and called me names. So I blocked her (the conversation was through MySpace messages at the time) and decided to contact the woman who facilitated the coffeehouse series to ask her about it. She emailed me back and said that ASCAP did indeed threaten to fine the venue $30,000 per song. “But I played all of my own songs that night,” I protested. She told me it didn’t matter, because, as a member of ASCAP, my songs were REGISTERED with ASCAP and listed in their catalog. Because the coffeehouse at which I performed wasn’t paying ASCAP, they were technically in violation of the rules.
Um, excuse me?
How in the world could ASCAP, or any other organization or individual for that matter, tell me where I could play MY songs to which I held all recording and performing rights? Yes, I was currently an ASCAP member, but why on earth do they think they have the right to charge a venue for songs to which I held the copyright? They were MY songs, not theirs.
The booker of the coffeehouse gig sent me this essay written by a singer named Richard Phillips who experienced a situation very similar to my own, except his experience was with BMI, and not ASCAP. His essay is very long – if you do not read all of it, at least read the last two paragraphs, which include this ruling by Marilyn Kretsinger, former Assistant General Counsel of former Congressman John McHugh (R, NY):
“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.”
Despite this ruling, and the fact that this should all be complete common sense anyway, PROs continue to use scare tactics and lies to extort huge amounts of money from venues that employ original musicians.
ASCAP has a history of being assholes. In the late 1990s, ASCAP targeted the Girl Scouts for royalty payments, demanding that they cough up money for singing songs around the campfire. The campaign back-fired on them when a few brave and savvy Girl Scouts leaders refused to be pressured and went to the media, resulting in a huge amount of bad press that made ASCAP look like a big mean bully on a playground (and rightfully so). Eventually, ASCAP backed off the Girl Scouts, but that hasn’t stopped them from targeting less controversial, more vulnerable organizations like coffeeshops.
A few months later, still an ASCAP member (though a very disillusioned one), I was gearing up to perform at local non-profit grocery store that employs both original and cover artists on weekends for their farmers markets. While negotiating my performance pay with the booker of the grocery store, she replied “We can’t pay you as much as we want to, because BMI (an organization very similar to ASCAP) is making us pay $50 per performance plus a huge annual fee.”
I tried talking with the grocery store booker, saying that she could fight this Goliath if she stuck to her guns and employed only original musicians, and backed it up with documentation and a copy of each musician’s playlist. In the end, they decided to pay BMI, in part because they were scared, and in part because they still wanted to employ a few cover-based acts to please their customers. The sick irony is that NONE of the original acts who performed at the grocery store saw any of that money filtered back to them in the form of royalties.
Two things became very clear to me at that moment: 1) based on intel from other musicians in my town, there was a BMI “spy” (aka “representative”) tracking down all the small little venues in my hometown and scaring them into paying them, and 2) neither ASCAP nor BMI had no intention of paying me any of the fees they incurred from these venues, thus they did not have my best interest as a songwriter at heart. It was then I decided to terminate my ASCAP membership.
But terminating my membership with ASCAP would not be so easy, because according to their policies, all songwriters wishing to cancel their memberships must endure a “waiting period” of 6 months. And if you are a publisher member (like I was), then you were looking at a year-long wait. It is obvious that ASCAP does not let their prisoners go willingly or without a fight. I have friends who endured painfully long waiting periods to get their memberships cancelled and songs out of the catalog, but not before ASCAP had cornered every little coffeeshop and bar in their town and pressured them into paying royalty payments, or give up offering live music altogether.
There are plenty of stories online that talk about ASCAP and BMI employing “spies.” It’s rumored that they pay college kids to go out to gigs and write down the songs the bands perform, then turn that info over to ASCAP or BMI so they can go back to the venues later and hit them with fines and extort fees from them. This is fine if a venue is employing a COVER BAND – a band that makes its money from playing other people’s music – but it’s definitely NOT OKAY if that venue is employing ORIGINAL artists who write and perform their own material.
With conglomerates and CEOs making obscene amounts of money these days, ASCAP and BMI are no exception – they are just a money making machine at the expense of the little people. Call me political, call me an idealist, call me whatever you want. But when it comes to my songs, they are MINE and I’ll do whatever I’ll damn well please with them, and no one else can or should profit off of them except for me.
If you hear of any shady PRO activity in your town, like representatives threatening venues with huge fines, take action: call the media – your little local paper, or Rolling Stone Magazine. Talk to any press who will listen. Educate the venues about their options, which include hiring totally original musicians who are NOT affiliated with any PRO. Tell your music business professors the idea thatsongwriters must join a PRO is outdated and harmful, and ask them to pose the alternative idea to their students.
If you are not signed up with a PRO, but you perform covers, check with the venue first and make sure that they are paying the PRO fees, because that is the only way you can legally get away with playing covers without having to pay royalties out of your own pocket to the artist whose material you are covering (and profiting from).
At the end of the day, my recommendation is to simply not join a PRO (or leave the one you’re signed up with), play as much original material as you can, and educate yourself and your fellow musicians about the risks.
UPDATE: December 2013
Two years ago, I left ASCAP, but not after being hounded more by their spies. I finally rid myself of ASCAP and resigned my membership, but it took 6 months! IMPORTANT: just because you cancel your membership does NOT mean your songs are automatically removed from the ASCAP library! If you don’t request that your songs are removed from the library, they can still collect royalties on your songs, but not pay you, because you are no longer a member! (Not that they ever paid me to begin with…) So be sure to cross all of your T’s and dot all of your I’s when you get out of your PRO.
Another update – a friend of mine, a jazz bass player in D.C., is having the exact same issue with ASCAP. His venues were being threatened by ASCAP spies and threatened with huge fines. My friend also tried to get out of ASCAP but it will take him several months until the “window of membership cancellation” opens up. (By the way, the membership cancellation months are July and April, and ONLY July and April. You can’t cancel any other time!!)
I want to be fair and say that I know a few (very few) original artists who have benefited from ASCAP grants and royalty payments. But I haven’t, and I personally found they did far more harm to me and the venues I play than good.
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