Playing MUSIC in a Restaurant: Legal?
joemont...@hotmail.com
restaurant. They play Dean Martin CD's from the kitchen, audible to the
patrons.
"People" have told them that they now must pay a fee (she used the word
TAX) if they wish to continue to play the CD.
Is this the BMI thing? And would the same circumstances apply if I were
to schlep my guitar down to CA. and play Joe Pass type arrangements of
"That's Amore" on my archtop (thru my NY-8!)?
Thanks,
JM
joemont...@hotmail.com
Frets
have all the rights to register and charge for music. BMI, ASCAP, and a new
one (last 10 years) out of Nashville, the name escapes me. I fought with
these people for years. At one point an attorney representing ASCAP enter
the establishment (a hotel) that I managed and demanded a check for the last
three years. He said that he would check in and play the television and
each registered song he heard would be a $10,000.00 fine. Needless to say I
paid.
Each owner has to fill out a form to be sent to each of these companies
(when they catch you) that discloses (among other criterion) the seating,
gross revenue, and hours of operation. The payment is on a sliding scale
depending on the factors that are in the form. For some reason I never
figured out, Clown entertainment is a big deal, they must have a separate
setup. As I stated, I fought these bastards for years. I told ASCAP to fax
me a list of their songs and I would tell the band not to play the songs. I
also added that I would have my bartender turn off the television if he
heard one of their songs. They replied there were over 17 million songs
registered. I replied, that's OK with me I'll go buy ten boxes of fax
paper. Of course they wouldn't do it.
My advice would be to claim you have no music in the restaurant. When and
if they come in (it may be never) tell them you put the music in yesterday.
I also found out that my local cable company also had to pay ASCAP which
really pissed me off. They were paid twice for the same music.
The good thing for your relative is that they are after the big fish and not
the small "mom and pop" establishments.
I also have a friend who has several songs registered at ASCAP and he
receives a check for about $00.90 each year.
Frets
<joemont...@hotmail.com> wrote in message
news:1103220936.9...@z14g2000cwz.googlegroups.com...
oasysco
Seems that Frets has given you a very detailed answer.
Let me add that the only things that can be copyrighted are the lyrics
and melody. I'm not sure about the title as there are plenty of songs
out there with duplicate titles.
My point is that if you aren't singing the songs, then there are no
lyrics to worry about. If you play fast and free with the melody, then
it's questionable whether or not you are copying the melody.
For live bands covering copyrighted songs, the venue must be in
adherence with the BMI/ASCAP/HarryFox copyrights - all of whom manage
copyrights for most songs out there. They are proxy organizations for
copyright holders and for some fee, seek to enforce copyright
protection for theire artists.
For live bands playing original music, no fees are needed.
As for pre-recorded music like personal CD's, I don't know. I do know
that a particular place near me has taken to piping in cable radio
instead of playing CD's as they used to. For one thing, it's probably
cheaper and they get a better selection of music.
Greg
JP
there.
YOu as a performer do not have to worry. The premises you play in must pay
a licence to have music in their establishment. Whether it be performing
bands, solos or a transistor radio or television set in a lounge area. As
does every other business. Like a hirdresser...if they wish to have the
radio on ..then they must pay a licence.
The fee will vary obviously between types of busniesses.
I totally agree with it. It is a source of income to APRA (here in AUST)
which inturn becomes a source of income for me and the many other writers.
People develop talent and skill over years..including study, write, record,
promote..spend millions...and it has to have a return. ITs business. Why
should an establishment be able to offer this comodity for no fee. Do you
expect the beer you sell over the counter to be free as well. Stands to
reason.
The revenue from such licences, as well as sync fees, broadcast etc..become
a money pot that is then distributed to the registered artists. If you are
an artist that has registered 6 songs, none of which have brought in much
use in terms of broadcaste or synchronisation fees, or performance
royalties...then you will will probably not see any return, unless you do a
live performance return or can list situations where it was aird, and then
you may recieve a few dollars.
IF however you produce a lot of music of which gets a lot of airplay or
broadcast, a lot of which is logged down on cue sheets etc...then you will
proportianally see a bigger slice.
The responsiobility has never been on the performer, but he venue. If for
some reason this is not the case...then someone is more than likely trying
to take advantage of you and shift responsibility...
As musicians I would suggest you should support all such moves by BMI, APRA,
JASRAC and such in their work to extend their powers as well as tighten
broadcast rules and logging. Like in the area of cable television and small
businesses that utitlise music.
JP
Jurupari
>
>I totally agree with it.
Maybe it's more equitable there, but here, it's 99% scam. Proof of that
pudding is the sliding cutoff date for public domain - anything younger than
Mickey Mouse.
Demanding money for running a television in a bar is exactly the kind of scam
I'm talking about. Unless they shut off tv's in emergency rooms, doctor and
dentist offices and everywhere else there is one that could be viewed by the
public, it's a transparent scam.
It wouldn't matter if there was a television or not since they'd collect on
the assumption that there would be patrons with their own televisions coming
in.
The whole basis for collection of these things is intimidation. I don't know
about australia, but in the US the asscrap collection agent will be a muscle
man, will usually be armed and working with someone else and he will threaten
you not only with lawsuits but most likely with getting your legs broken or
burning down your establishment. It's like a protection racket when you look at
it closely. Real sore point with me - I hate shakedowns and shaker downers,
and have been known to give them a dose of their own medicine.
Clif
JP
But, lets not confuse the issue. Music in a business is a sevice, not a
assumed right of that busniess to exploit for profit.
JP
"Jurupari" <juru...@aol.com> wrote in message
news:20041216180508...@mb-m06.aol.com...
joemont...@hotmail.com
Italian Restaurant - playing Dean Martin singing, let's say "That's
Amore." It's no accident that the CD music she is playing in an
ambience with red checkered tablecloths, a map of Italy as a placemat,
breadsticks on the table and low lighting...the entire package is
creating an atmosphere conducive to maximizing profits in the
establishment...selling Italian Food...She paid for the maps, the
candles, the breadsticks, the tablecloths...
Why not the music? She thinks she's being shaken down...I said I guess
it depends on what side of the Pasta Bowl one is twirling from...are
you the restaurant owner or the company overseeing the copyrights of
Dino, the songwriters, etc....
JM
Jurupari
>it depends on what side of the Pasta Bowl one is twirling from.
Every time i get into an elevator go to the supermarket or walk in a mall I get
inundated with music. Shouldn't they go after them too in your world? Why
would Nana be a conspirator against art and Kroger not be? What if I take up a
collection among friends for eats and beer and they watch the super bowl on my
hdtv? Not mine, but someone's... do they owe HFA for who let the dogs out?
If dentists use relaxing music while they're drilling, don't they owe asscrap
too?
Litigation or harrassment with threats to that end are the benchmark for
frivolous lawsuits - it's predicated on the idea that all music is owned by
these societies. It wouldn't matter in the least if you were playing all
original material or making anathematic sounds that didn't ever repeat - they's
still allege they owned it and you didn't and try to shut you down if they
couldn't shake you down. Scam city.
Clif
Al
I get
> inundated with music. Shouldn't they go after them too in your world? Why
> would Nana be a conspirator against art and Kroger not be? What if I take
up a
> collection among friends for eats and beer and they watch the super bowl
on my
> hdtv? Not mine, but someone's... do they owe HFA for who let the dogs
out?
Actually, I'm pretty sure the Muzak guys pay hefty royalty fees to those
societies. Your dentist might also. It's pretty pervasive.
I'm a member of ASCAP. While I'm sure there are abuses and some
unreasonable stuff going on, there ought to be a fair way for songwriters to
earn a living. The average songwriter earns $5K a year. That's an average
that includes the biggest names in the biz, so you can imagine what 99.999%
of them earn. If I own a club, and I'm using someone else's creativity to
promote and sustain my business, don't I owe the creator something, at least
a little something, for that? Every other person who contributed to the
running of that operation got paid something, right?
Al (Lifetime songwriting royalties: About $100.00)
Jurupari
>societies.
not PERFORMANCE fees - the mechanical license they buy is different - release
of recording only. asscrap can double dip as they do on any song a musician
learned off a record he bought and performed in public.
>While I'm sure there are abuses and some
>unreasonable stuff going on, there ought to be a fair way for songwriters to
>earn a living.
I don't think earning it from someone who never heard the songwriter's song and
never will, much less record it or perform it is in any way fair.
This isn't about songwriters earning a living, that's the asscrap red herring.
it's about a music scam society screwing writers on one end and performers and
*small* business on the other.
> If I own a club, and I'm using someone else's creativity to
>promote and sustain my business, don't I owe the creator something, at least
>a little something, for that?
the creator, not the society that has zero allegiance to the creator. They
don't practice what you preach or I wouldn't be posting.
And should they owe it forever? Under current law, they do, and to the
*copyright holder*, not the 'creator'.
they will never send you an accounting of distribution of the funds they've
muscled out of you. Why is it equitable to squeeze small businesses over this
and never account for a penny of it to any of their victims?
They're a business, not a state agency, and they don't operate with any public
accountability at all. They get away with it because they don't try to shake
down large corporations, just bleed the defenseless.
They don't sue Kroger because they'd have to actually pay for the litigation
and there's an excellent chance they'd lose and set a precedent, so they go
after the defenseless.
Here's the test of fair - how much pasta is Dean Martin singing That's Amore
from the kitchen going to move, anyway?
Who among the customers is going to remember what was playing on muzak or a
boombox from the kitchen when a steaming ossa buco is set before you? It's less
significant than the silver pattern.
Here's another test of fair. They presume that if your doors are open, then
you're a tort feasor Per Se.
In the US, that would be against Public Policy, so the only way they can take
that stance is to squeeze the weakest so it can't be tested.
If you inform an asscrap enforcer that you perfom only original material and
that you therefore owe nothing to asscrap, it is his duty to demonstrate
otherwise in order to prevail against you legally.
They dispense with that step and go straight to threats and intimidation.
Most people in business don't want to deal with this element and allow
themselves to be extorted. Whether a penny of this actually gets to any
copyright holder is debatable. This isn' t a huge source of income, and
probably just pays the office expenses, law office retainers and salary(ies) of
musclemen. Not that you'd ever know - I've never seen any accounting from
these crooks.
Clif
JP
IF you own a business and use music. Pay for it.
IF you dont want to pay for it. Wrte, produce it yourself, own the rights
and and cycle it round your establishment for ever..
IF you do want to do that, and wish to hire live musicians, or have
broadcaste radio or television in your storese...then pay for it. IF you
refuse and people have to come round and hassle it from you . Then im for
it.
Cause in the end they're stealing from me ans well as the companies that pay
me to write and produce for them.
Rick Stone
> >Why not the music? She thinks she's being shaken down...I said I guess
> >it depends on what side of the Pasta Bowl one is twirling from.
>
> Every time i get into an elevator go to the supermarket or walk in a mall
I get
> inundated with music. Shouldn't they go after them too in your world? Why
> would Nana be a conspirator against art and Kroger not be? What if I take
up a
> collection among friends for eats and beer and they watch the super bowl
on my
> hdtv? Not mine, but someone's... do they owe HFA for who let the dogs
out?
They do! Those places have to pay for the music they play.
> If dentists use relaxing music while they're drilling, don't they owe
asscrap
> too?
This one has come up too, and I think that they are trying to charge these
people for the use of copyrighted music as well.
> Litigation or harrassment with threats to that end are the benchmark for
> frivolous lawsuits - it's predicated on the idea that all music is owned
by
> these societies. It wouldn't matter in the least if you were playing all
> original material or making anathematic sounds that didn't ever repeat -
they's
> still allege they owned it and you didn't and try to shut you down if they
> couldn't shake you down. Scam city.
But 99.9% of the places that BMI, ASCAP and SESAC collect from DO play music
that is registered with those agencies. The main reasons for the inequities
in the distribution of funds stems from the difficulty of tracking what is
actually played. What BMI does (and I assume ASCAP and SESAC have similar
systems) is of the 9,000 radio stations in the US, they collect DJs play
logs one or two days a year (they also have people listening to a sampling
of these stations to see if what is being reported is actually what's being
played) and then use a multiplier to figure out how much royalties each song
has generated.
Of course, you can see that unless you're pretty high-profile stuff, it's
possible to fly completely under the radar of this system and hence collect
nothing.
Now with some of the digital "fingerprinting" technologies that are out
there, I think in the future this is going to become less of a problem. For
instance, I just signed up for a service called Artist Monitor with a
company called Media Guide. They monitor over 2,500 stations in the US. You
can log in and get reports on exactly when and where your CD gets played
(also which songs). When the performance rights societies (which are large
non-profits and hence pretty slow-moving) finally catch up with this, I
think the distribution system will probably pretty accurately represent what
is being played.
--
Musically Yours,
Rick Stone
website: http://www.rickstone.com
Check out my new CD "Samba de Novembro"
with Tardo Hammer, Yosuke Inoue and Matt Wilson
You can hear clips at http://www.cdbaby.com/cd/rickstone
and read two excellent reviews on All About Jazz at
http://www.allaboutjazz.com/php/article.php?id=14592 and
http://www.allaboutjazz.com/php/article.php?id=14624
Jurupari
>refuse and people have to come round and hassle it from you . Then im for
>it.
I don't do any of that but you don't address the egregious offenses by
corporations.
The issue is still that the least offenders pay all and the greatest offenders
pay nothing. that is also what you appear to be for.
>Cause in the end they're stealing from me ans well as the companies that pay
>me to write and produce for them.
Then stop trying to exact tribute from some poor paisan who's playing his tunes
in the kitchen of a pizza joint, put up the capital necessary to litigate and
go after the real offenders.
They and the publishing society are the culpable parties, not those who are
trying to be extorted for fair use. You're burning down an apartment complex on
the assumption that there may be a guilty party lurking somewhere within.
> IF you
>refuse and people have to come round and hassle it from you . Then im for
>it.
so you're thinking that a copyright holders' society is lawfully entitled to
compensation for any reproduction of material in a public place, even if it's
all mine and not published?
Great, why don't you go hassle hospitals, malls grocery chains, office
buildings, department stores, sports bars and prisons and see how far you get
threatening to break legs and bringing forward nuisance litigation against
them.
In other words, try picking on someone your own size, like Walmart or Kroger
or Goldman-Sachs or Pepsico or the State of California Department of
Corrections. Your one size fits all definition most certainly includes them,
but you'll need a lotta baseball bats.
Clif
Jurupari
>> original material or making anathematic sounds that didn't ever repeat -
>they's
>> still allege they owned it and you didn't and try to shut you down if they
>> couldn't shake you down
>But 99.9% of the places that BMI, ASCAP and SESAC collect from DO play music
>that is registered with those agencies
I would contest that percentage, but even if it were so it's still not 100%.
There is nothing that I know of that establishes a precedent of a defendant
having to prove innocence in a civil dispute - the plaintiff must still
establish some cause of action, and they choose to do something else to
circumvent having to do that.
Additionally, there is no single held to definition of fair use. That's in
dispute in a number of ways, and if your point of view were to prevail on a
more microscopic level, the definition of fair use would be even further
constricted.
A fellow I knew used to let some friends of his jam in the rear of his store.
It was a video store and did nothing either way to business but he couldn't use
his own property to permit invitees, not licensees to enter the premises and
play music together for enjoyment in a sequestered area simply because it could
be heard in the front of the store.
It used to be that rock bands would rent storage spaces for practice, but
that's probably subject to encroachment too.
It's very foreseeable where this is all going. Be careful what you wish for -
there will be ever increasing consequenses to making music in any fashion as
time goes on.
At present if you were to open a public place for the express purpose of
showcasing your original musical material, you would be obliged to pay tribute
nontheless. If you do this, you're not 00.1%, you're 100%.
I suppose guitar stores have to buy distribution to smoke on the water,
roundabout (and Donna Lee in Boston), too.
Personally, I favor a broader definition of fair use, not a narrower one
because I believe that ultimately benefits the jazz musician more than it harms
him.
The corporate view would of course be the diametric opposite. I'm not in that
camp for a number of reasons.
Clif Kuplen
Al
> systems) is of the 9,000 radio stations in the US, they collect DJs play
> logs one or two days a year (they also have people listening to a sampling
> of these stations to see if what is being reported is actually what's
being
> played) and then use a multiplier to figure out how much royalties each
song
> has generated.
I think the log system is BMI's alone. The others "sample" the playlists
and have a formula based on that.
Mike DiFebbo
entitled to
compensation for any reproduction of material in a public place, even
if it's
all mine and not published? >>
The original poster asked about a specific copyrighted composition, not
about your unpublished work. It is pretty clear that the *copyright
holder* is entitled to compensation for reproduction of copyright
material in a public place--and a restaurant constitutes a public place
the way that the phrase is defined under the Act.
The Copyright Act, 17 USC s. 106, provides: "Subject to sections 107
through 122, the owner of copyright under this title has the exclusive
rights to do and to authorize any of the following: ... (4) in the
case of ... musical ... works, ... to perform the copyrighted work
publicly; ...."
Playing an audio recording of a copyrighted song is a "performance"
within the meaning of the Copyright Act. According to section 103 of
the act, "To 'perform' a work means to ... play ... it, either directly
or by means of any device or process ...."
As to the question of whether playing a copyrighted work in a
restaurant constitutes a "public" performance, section 103 of the
Copyright Act also provides as follows:
"To perform or display a work 'publicly; means-
(1) to perform or display it at a place open to the public or at any
place where a substantial number of persons outside of a normal circle
of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of
the work to a place specified by clause (1) or to the public, by means
of any device or process, whether the members of the public capable of
receiving the performance or display receive it in the same place or in
separate places and at the same time or at different times."
Jurupari
>about your unpublished work
Not in this thread he didn't.
The original was an issue of what constituted 'public display'. Please pay
attention if you wish to keep comments on point.
Let's look at your Copright Act cite:
>(1) to perform or display it at a place open to the public or at any
>place where a substantial number of persons outside of a normal circle
>of a family and its social acquaintances is gathered; or
etc...
the key word in that sentence is 'display'.
It's a major stretch to assert that the kitchen help's tape is in any way an
effort to 'display' music to patrons in another room and I doubt there's case
law on point at this time to demonstrate otherwise.
You'd have to go to intent to disprove fair use, as I suspect you know but
won't say.
My involvement in this thread had nothing whatsoever to do with specifics of
the copyright act; rather, I was bringing up the willingness by agents of
composers' societies to blanket prosecute or strongarm and threaten anyone who
has anything whatsoever to do with music, and under the flimsiest of pretexts.
they do this because it's easy money, and their methods aren't always lawful.
In my personal experience, they've never been lawful.
Under your guidelines, incidentally, a motorist stopped at a light or slowed
in traffic with the radio on and the window open downtown would also owe
royalties.
What I've experienced from asscrap would be about the same as roving gangs of
thugs with baseball bats downtown trying to coerce stopped motorists to pay
royalties to listen to their own radio.
I suppose a coworker in another cube in one of the adjacent buildings is also
an offender if the music can be heard by inhabitants of other cubes too. Think
of the untapped goldmine, taxes on taxes on taxes!
That's bullshit, and it wouldn't have occurred to anyone without a dog in the
fight that this would not be fair use, but by your definition it's on display
and subject to extortion.
Twice, if they caught someone recording the radio too regardless of any intent
to display.
Be careful what you wish for - the intention seems to be clearly to apply
every stricture imaginable to fair use. this is in lockstep with 'public domain
yesterday, public domain tomorrow but never public domain today', which is the
reality of copyright expiration dates.
I repeat that if this continues to occur, both composers and musicians will
suffer and the non musician middlemen will benefit.
Here's another related thought:
This 'secondary gain' is very much akin to Secondary Loss, which as an
historical precedent is not recoverable by tort action even when it's
foreseeable, so the thinking of the law is that no recoverable damage occurs.
Secondary loss could be illustrated by, I think it's a poem from Stevenson that
starts 'for want of a nail a horshoe was lost' and it goes on through horse,
rider message and kingdom, all lost for want of a nail.
Insurance companies will replace the nail but the rest is secondary loss.
It's my contention that any alleged secondary' gain' under most circumstances
is fair use and no more recoverable than secondary loss, nor should it be.
Argue if you want but you won't convince me otherwise if it appears to be
against public policy.
To do so would mean I'd have to admit you own my compositions, even before
they've been written. At any rate, that was asscrap's position, and I say it's
bullshit.
Clif Kuplen
kan...@tiac.net
a bit "heavy-handed", but I support these organizations, only because
there isn't much of a coherent alternative, at least at the current
time. Unlike my fellow geeks, I don't think everything should
necessarily be "free".
When I checked into this a few years ago, it wasn't an exorbitant fee -
it was like $100-$200/yr for a small/medium restaurant/bar.
-Jim
Al
> a bit "heavy-handed", but I support these organizations, only because
> there isn't much of a coherent alternative, at least at the current
> time. Unlike my fellow geeks, I don't think everything should
> necessarily be "free".
That's my perspective, too. Intellectual property is at a tremendous risk
right now with all things going digital and all the piracy going on
web-wise. At various times I have made a serious effort to write songs (and
have had a couple published/recorded). While doing that I became acutely
aware of how difficult it is for songwriters to make anything from their
work. So I'm glad to have these societies are around. I'm sure some people
have experienced abuses, but it's the only system songwriters have got right
now. Record companies are far worse -- they don't give a damn about
songwriters.
tomb...@jhu.edu
Michael Jackson so that he can pay off his little boys. Any musician
who is not writing T40 songs should oppose this system. It is a total
rip-off to any alternative artist, and benefits only the
monster-selling radio acts.
ken
in jazz magazines with huge smiles on their faces. They basically said
life is very good because of all the royalties they are getting to this
day.
I know some other famous jazz musician families who depend on the
royalties for living so...
Ken
tomb...@jhu.edu
and give them to the big guys.
The fact that a handful of jazz guys managed to write hits and get paid
does not change the fundamental unfairness of how these companies
distribute royalties.
JP
Is it better than no system?
Do you have an alternative that we can switch to perhaps?
Do you think the thousands of writers and producers of NON POP hits, who
make their living (or substantive proportion) of...agree with you.
JP
<tomb...@jhu.edu> wrote in message
news:1103422361.4...@z14g2000cwz.googlegroups.com...
Rick Stone
his original music. So has Wayne Shorter, Benny Golson and a number of
others. They have also been lucky enough that originals have become popular
and are recorded by other musicians as well.
This means that their music gets significant enough airplay to make it
visible to the sampling system. Hence they get some significant royalties.
Of course, it's also possible for a jazz artist to get significant airplay
of their CDs while remaining pretty invisible to this system.
That's why I'm very curious how some of the new digital technologies are
going to effect things in the next few years. The digital fingerprinting
being used by companies like Media Guide will soon make it possible to have
a 100% accurate accounting of EXACTLY what is being played. Right now the
service is fairly new and they are tracking about 2,500 of the 9,000 radio
stations in the country. If they (or another company like them) is able to
track ALL the stations, then a "sampling" system will become unnecessary,
because the will be an easy way to demonstrate what's been played. They
won't have to "guess" anymore.
I'm sure that once the technology is a little more firmly entrenched, it
will be impossible for the performance rights societies to ignore it. Plus,
it will actually be less expensive for them since they won't have to pay
people to monitor what's being played.
Musically Yours,
Rick Stone
website: http://www.rickstone.com
Check out my new CD "Samba de Novembro"
with Tardo Hammer, Yosuke Inoue and Matt Wilson
You can hear clips at http://www.cdbaby.com/cd/rickstone
and read two excellent reviews on All About Jazz at
http://www.allaboutjazz.com/php/article.php?id=14592 and
http://www.allaboutjazz.com/php/article.php?id=14624
<tomb...@jhu.edu> wrote in message
news:1103422361.4...@z14g2000cwz.googlegroups.com...
Mike DiFebbo
No, it is not. That phrase is written in the disjunctive: "perform OR
display." In the context of audio recordings, the word "perform" is
the key word, not the word "display." As you undoubtedly know, the
Copyright Act applies not only to audio works, but also to visual
works, like the written word and artwork. The word "display" is more
applicable to visual works than musical works. The word "perform," on
the other hand, clearly applies to musical works.
<<but by your definition>>
It's not my definition. It is the definition adoped by Congress in the
Copyright Act.
<<You'd have to go to intent to disprove fair use, as I suspect you
know but won't say. [snip] It's my contention that any alleged
secondary' gain' under most circumstances is fair use and no more
recoverable than secondary loss, nor should it be.>>
You have a fundamental misunderstanding of the nature and scope of the
fair use doctrine. First, the fair use doctrine relates to "criticism,
comment, news reporting, teaching ..., scholarship, or research," not
to "secondary gain" (whatever that may be). Second, there is ample
case law expressly (and emphatically) rejecting the notion that the
public performance of copyrighted music in restaurants for the
enjoyment of customers is a fair use. See, e.g., U.S. Songs, Inc. v.
Downside Lenox, Inc., 771 F. Supp. 1220 ("However, Defendants in this
case have completely failed to demonstrate how their use of the songs,
by broadcasting them throughout a public bar and restaurant area, falls
within any of the above 'fair use' situations. Indeed, the Court
cannot imagine how, by any stretch of the imagination, Defendants'
situation may be characterized as 'fair use' as that use is narrowly
defined in s. 107"); Broadcast Music v. Blueberry Hill Family
Restaurants, 899 F. Supp. 474 ("The defendants have made no showing
that the operation of jukeboxes in Blueberry Hill restaurants merely to
enhance the enjoyment of a dining experience remotely resembles the
'fair uses' described in s. 107. ... Playing copyrighted songs in a
commercial setting to enhance the quality of the paying customers'
experience is not intended to be an act of scholarship; it is intended
only to increase personal profits. Playing such songs requires a
license as a matter of law"). Third, the fair use doctrine is an
*exception* to the Copyright Act. The copyright holder does not need
to prove that an infringment is NOT a fair use; instead, the alleged
infringer needs to prove that a performance IS a fair use.
<<Argue if you want but you won't convince me otherwise if it appears
to be against public policy.>>
With all due respect, it really doesn't matter to me whether I convince
you or not. I just don't want you to convince someone else, through
your (mis)use of inapplicable but authoritative-sounding legal jargon,
that there is no copyright violation under these circumstances because
of some nebulous, misapplied notion of "fair use." The original poster
did not give us enough information to determine whether there is a
copyright violation at his relative's restaurant. For example, we do
not know enough about the situation to determine whether it falls
within the "home system" exception in section 110(5) of the Copyright
Act. If the original poster's relatives want to know whether their
situation is potentially a copyright infringement, they should consult
a lawyer in their area who can review the specific facts of their
situation and give them a competent opinion as to whether they have
potential liability. Alternately, they could choose to pay the nominal
licensing fee, or to discontinue the music. But they should not rely
on free advice that has no basis whatsoever in the language of the
Copyright Act or the cases decided under it.
Unknown
>Yea right...in a perfect world...
>
>Is it better than no system?
>Do you have an alternative that we can switch to perhaps?
>
>Do you think the thousands of writers and producers of NON POP hits, who
>make their living (or substantive proportion) of...agree with you.
>
>JP
>
The system favors composers and/or those who have bought copyrights
from composers. Performers are not rewarded at all by the
ASCAP/BMI/Harry Fox methods. What this means is that jazz musicians
who have done a lot of composing, and whose tunes are performed by
other jazz musicians (the most important aspect) are well rewarded.
Horace Silver is a good example of a jazz composer who has been well
rewarded by the system. (And I am certainly not begrudging him his
reward -- he earned it.)
On the other hand, jazz musicians who spend their lives playing other
people's music (which is lots of us) are not rewarded by the system.
For example, if I record a piece written by Henry Mancini, and it
receives 1,000 airplays around the country in a one year period, I am
entitled to zero in the way of royalties. The royalties are instead
paid completely to the owner of the Henry Mancini copyrights.
Something about this seems a bit lopsided, especially when you
consider that in a typical jazz performance, the tune itself is heard
for perhaps 20% of the the time, and the rest of it is improvisation.
Tim
http://timberens.com
A Website for Guitarists
Learn something...Have some fun
timb at erinet dot com
ken
(Tim Berens) wrote:
> The system favors composers and/or those who have bought copyrights
> from composers. Performers are not rewarded at all by the
> ASCAP/BMI/Harry Fox methods. What this means is that jazz musicians
> who have done a lot of composing, and whose tunes are performed by
> other jazz musicians (the most important aspect) are well rewarded.
> Horace Silver is a good example of a jazz composer who has been well
> rewarded by the system. (And I am certainly not begrudging him his
> reward -- he earned it.)
What's wrong with that? Performers get rewarded by getting fees for
performing and sales proceeds from CD sales (well, sometimes you don't,
like the folks at Knitting Factory records, but that's a different
argument).
> On the other hand, jazz musicians who spend their lives playing other
> people's music (which is lots of us) are not rewarded by the system.
> For example, if I record a piece written by Henry Mancini, and it
> receives 1,000 airplays around the country in a one year period, I am
> entitled to zero in the way of royalties. The royalties are instead
> paid completely to the owner of the Henry Mancini copyrights.
> Something about this seems a bit lopsided, especially when you
> consider that in a typical jazz performance, the tune itself is heard
> for perhaps 20% of the the time, and the rest of it is improvisation.
But then who is benefitting from the air play? Who gets the proceeds
from the CD sales that might follow? Or getting hired to play a gig?
I'm not defending the system as is; I'm sure there's a lot of problems
with it.
But I don't think there's a problem in GENERAL that performers get
performance fees, composers get royalties, people who make CDs get
proceeds from CD sales, and people who do all of the above get all of
the above.
Who gets how much is open to debate, but I don't see a problem with the
system in principle...
Ken
JP
discussion I think.
Still, in the example of your Manicin tune...your not entitled to any
Publishing..
The way its set up..as your obviously aware..is that publishing is set up to
protect the owners of the copyright. In this case Mancinis publisher. YOur
recording relys heavily on the popularity of the song you've chosen to
record...your leveraging its popularity.
So whilst i recognise your point, i'm not sure how unfare it all is.
IF your radio airplay of the manicini tune gets you exposure and cd sales.
Then your going to recieve some publishing on any of the cds content that
you did wrote. I'm sure that might be considered unfair to Mancini in that
its HIS tune that many may have bought the CD for..and not the other tracks.
I think injustice can be seen in many places if we look hard e3nough. \
I think the current system works well..and its being improved all the time
with electronic records and tracking.
Best Regards
John
...
<Tim Berens> wrote in message news:41c5bdf5....@news.core.com...
Joe Finn
<joemont...@hotmail.com> wrote in message
news:1103220976....@f14g2000cwb.googlegroups.com...
>A relative of mine owns a small Mom and Pop restaurant. Italian
> restaurant. They play Dean Martin CD's from the kitchen, audible to the
> patrons.
>
> "People" have told them that they now must pay a fee (she used the word
> TAX) if they wish to continue to play the CD.
>
> Is this the BMI thing? And would the same circumstances apply if I were
> to schlep my guitar down to CA. and play Joe Pass type arrangements of
> "That's Amore" on my archtop (thru my NY-8!)?
>
> Thanks,
>
> JM
BMI and ASCAP are among organizations that collect fees on behalf of music
publishers, composers, etc. They represent the people who own the
performance rights, copyrights etc. to certain material. This way the
composer of the song Dean Martin recorded gets paid when the recording is
broadcast or presented in a commercial establishment such as a restaurant.
If you play there live you can get around this by playing your own material.
.....joe
--
Visit me on the web www.joefinn.net
>
-----------== Posted via Newsfeed.Com - Uncensored Usenet News ==----------
http://www.newsfeed.com The #1 Newsgroup Service in the World!
-----= Over 100,000 Newsgroups - Unlimited Fast Downloads - 19 Servers =-----
Joe Finn
I know people who collect royalties. They are real people collecting real
money to which they are properly entitled.
Because the present model is less than perfect doesn't mean your "handful of
jazz guys" shouldn't "get paid". ....joe
Joe Finn
"Rick Stone" <jazzan...@verizonnospam.net> wrote >
Thanks for your comments, Rick. At the heart of this issue is the way in
which copyrights are exercised within various media settings like radio, tv,
and background muzak recordings piped into public places. The implications
more recently of internet downloading are bigger than anything that's come
before. How are intellectual property rights to be exercised and how can
authors and composers be fairly compensated with the royalties to which they
are justly entitled?
It has been pointed out in this discussion that the present system leaves a
lot to be desired. While we continue to live in an imperfect world, to call
the current business model a "scam" goes too far. I get the sense that some
would have us believe that composers are not entitled to compensation at
all. This napster-esque mentality continues to be a big problem that will
take many more years to run it's course.
In the meantime some of the digital "fingerprinting" technologies that you
mention may supply us with some of the answers we are looking for. ....joe
Marc Sabatella
paid
> does not change the fundamental unfairness of how these companies
> distribute royalties.
True, but realistically, can you suggest a more equitable system that
would actually be feasible to implement? I'm not sure this is a problem
that can easily be fixed. What *can* be fixed is the price structure
that ASCAP & BMI charge venues - it really does not scale down well to
typical little mom & pop shops that just want to have music a couple of
nights a week.
--------------
Marc Sabatella
ma...@outsideshore.com
The Outside Shore
Music, art, & educational materials:
http://www.outsideshore.com/
Marc Sabatella
are
> going to effect things in the next few years. The digital
fingerprinting
> being used by companies like Media Guide will soon make it possible to
have
> a 100% accurate accounting of EXACTLY what is being played. Right now
the
> service is fairly new and they are tracking about 2,500 of the 9,000
radio
> stations in the country. If they (or another company like them) is
able to
> track ALL the stations, then a "sampling" system will become
unnecessary,
> because the will be an easy way to demonstrate what's been played.
They
> won't have to "guess" anymore.
Except all that will do is more firmly entrench the problem Tom
describes - using radio airplay as a measure of what gets played in
clubs is really a terrible model. We all know jazz gets hardly any
radio airplay compared to top 40, but when it comes to live performance
in restaurants, it is probably disproportionately common. The money
ASCAP and BMI collect from clubs that feature jazz is being paid out to
musicians writing pop. The systems you describe will only help make
sure this done more efficiently.
Marc Sabatella
> from composers. Performers are not rewarded at all by the
> ASCAP/BMI/Harry Fox methods.
This isn't just an accident of how these organizations work - that's how
the law is specifically worded in the US. Other countries *do* have
something to allow performers to collect royalties on public
performances of their recordings, and there has been some pressure from
the rest of the world for the US to adopt something similar, but thus
far, those efforts have been rejected here.
I definitely agree it should be considered. For me, it all boils down
to who is providing the value. If a radio station or restaurant plays a
recording of you playing Mancini, and this is perceived to provide some
benefit to the listener, I would claim that this benefit it is at least
as much due to your contributioon as Mancini's - especially in the jazz
world, of course.
JP
"Marc Sabatella" <ma...@outsideshore.com> wrote in message
news:10sf0uk...@corp.supernews.com...
Rick Stone
> from composers. Performers are not rewarded at all by the
> ASCAP/BMI/Harry Fox methods. What this means is that jazz musicians
> who have done a lot of composing, and whose tunes are performed by
> other jazz musicians (the most important aspect) are well rewarded.
> Horace Silver is a good example of a jazz composer who has been well
> rewarded by the system. (And I am certainly not begrudging him his
> reward -- he earned it.)
>
> On the other hand, jazz musicians who spend their lives playing other
> people's music (which is lots of us) are not rewarded by the system.
> For example, if I record a piece written by Henry Mancini, and it
> receives 1,000 airplays around the country in a one year period, I am
> entitled to zero in the way of royalties. The royalties are instead
> paid completely to the owner of the Henry Mancini copyrights.
> Something about this seems a bit lopsided, especially when you
> consider that in a typical jazz performance, the tune itself is heard
> for perhaps 20% of the the time, and the rest of it is improvisation.
This is exactly why many jazz musicians perform their own originals instead
of playing standards. A long time ago Jimmy Heath told me that he never
plays "Autumn Leaves" but instead plays his own tune "Sleeves" for the
simple reason that every time he plays his tune, he's getting the publishing
royalties as opposed to them going to another publisher.
Also, there's an issue when a musician records for a label. The common
practice now is for the label to give an artist a certain "allowance" for
mechanicals which have to be paid to other publishers. This amount is
usually not enough to cover the songs on a 60 minute CD, and anything above
that amount comes out of the artists future royalties on CD sales. Of
course, jazz musicians generally NEVER get paid royalties on CD sales
because the numbers are so small. Most guys will tell you to get as much as
possible up front for the session because that's all you will ever see.
tomb...@jhu.edu
the sampling method--right? Today, the cost of *not* counting who
plays what where--in an accurate manner--is externalized onto the
little guys, who don't get paid what they deserve. The cost of actually
making an accurate count could be placed any number of places, but
first, there would need to be widespread support for doing that, which
is unlikely to come about.
Case in point--the story above about Jimmy Heath thinking he's getting
paid for playing Sleeves in a club is kind of pathetic. This kind of
false consciousness is common, and is apparent in many corners of this
thread. It reminds me of the widespread opposition among Americans to
the estate tax, because maybe someday I could be one of the .02% who is
rich enough to pay that tax.
Marc Sabatella
> the sampling method--right?
I am not just talking about monetary cost, but also what is technically
possible, logistically viable, relatively resistant to fraud, and not
politically impossible. Sampling radio station airplay is relatively
easy, and while it results in numbers that don't *really* represent what
is played in clubs, it obviously comes closer than, say, randomly
assigning percentages to tunes, or even splitting the money equally
among every song ever registered. I'm asking you if you can can up with
a system that will correlate better with what is actually played in
clubs. Then we can discuss how feasible it is.
The brute force solution is to have the clubs ask every band who plays
there to submit tune lists night after night, and then have someone
compile those. I think we all realize that isn't going to happen. So,
how about a sampling system, as with radio stations? A club asks bands
two weeks out of the year to submit lists. Seems straightforward
enough. But I think it would fail pretty miserably on several counts.
First, opportunity for fraud is rife. Payola issues aside, a radio DJ
has no particular incentive to say he played one song over another. But
a musician would have an obvious self-interest to claim he played his
own originals. He might even actually play them - but would he have
played as many if he weren't being asked to submit a playlist?
Logistically, this has big issues it requires whole new levels of
bureaucracy and paperwork channels. A radio station is in the music
business and can be convinced to go through these hoops. Most
restaurants probably would just never get around to it - or perhaps keep
submitting the same list over and over. Evn if the restuarand and bands
were willing to try, this is more complex than in the case of radio
airplay, because with radio airplay, the DJ has the title, composer,
publisher, and performance rights association info printed on the CD and
all he has to do is copy it onto the form. Quick - can you even name
the composer, publisher, and performance rights association for "Autumn
Leaves" without looking it up? What do you think the chances are
getting an accurate list compiled?
> Today, the cost of *not* counting who
> plays what where--in an accurate manner--is externalized onto the
> little guys, who don't get paid what they deserve. The cost of
actually
> making an accurate count could be placed any number of places, but
> first, there would need to be widespread support for doing that, which
> is unlikely to come about.
>
> Case in point--the story above about Jimmy Heath thinking he's getting
> paid for playing Sleeves in a club is kind of pathetic.
True enough, but to the extent this ultimately translates into more
people covering the tune or the tune getting more radio airplay - not an
entirely unreasable assumptions in either case - it could have some of
the desired the effect.
tomb...@jhu.edu
In your alternative system, the little guy does get paid, which is
excellent. I don't see the inaccuracies that you label as "fraud" in
your alternative system as being much more or less objectionable than
the inaccuracies in the current system. And I think your alternative
system would encourage more people to compose and play their own music,
which would be a very excellent latent benefit.
But I agree with you that it's never going to happen, because of
corporate hegemony at the top and false consciousness at the bottom.
Marc Sabatella
> excellent.
Some of the little guys - the ones who happened to be playing their own
originals the day of the sampling. And they'd get paid a pittance,
because the sampling would show their music being played something like
0.000001% of the time. Admittedly better than the 0% it shows as now.
But the actual reward to these lucky few would hardly be worth the
enormous hassle of the system.
> I don't see the inaccuracies that you label as "fraud" in
> your alternative system as being much more or less objectionable than
> the inaccuracies in the current system.
Perhaps not. But fraud was only one of many problems I described with
this system. It is the bureacratic nightmare aspect of it that would
prevent this from ever working in reality.