Thursday, June 01, 2006

Ass Cap

As some of you probably already know, James Watkins and the good people over at Metrognome (you know, one of TWO vital D.I.Y. venues in the whole Metroplex) have recently been getting harassed for performance rights royalties by ASCAP after they were tipped off that, get this... DJs had been playing songs by ASCAP artists in between sets. Goddamn those DJs! Fort Worth Weekly has this to say about it:

ASCAP is the largest music licensing company in the world, and they'd sue you for singing a copyrighted song in the shower if they could. The Metrognome Collective (1518 E. Lancaster Av.) is much bigger than a shower, and now that the upstart multi-disciplinary organization has become a bona fide destination for music, art, and theater, ASCAP is bringing down the hammer: The Man wants about four cents from every 'Gnome cover charge, which, according to the art group's calculations, will total about $500 per year. It ain't much, but for a group that makes next to nothing and is on its way to becoming a legit nonprofit, it's enough to piss me off. The problem isn't the live bands — 99 percent of them play original music. The problem happens during art openings or between sets, when DJ's brought in by the 'Gnome do what they're supposed to and spin a few well-known records. No, not Beyoncé or Shania Twain singles, but tunes by ASCAP-protected small fries like The Silver Jews, The Fiery Furnaces, and Wolfmother. Funny thing is, ASCAP will take the 'Gnome's money under the auspices of "protecting" the small fries but will use the cash to do nothing but espouse an industry environment that produces more Beyoncés, Shanias, and other cash cows, and fewer Wolfmothers. A possible solution: Play all local indie stuff.


And for your inspection, a copy of the letter that Metrognome received from ASCAP, in pdf format: HERE


And here was James' response to an ASCAP rep via email:

Ann,

I havent heard back from you yet, but I thought I would send you
the write-up about our situation from today's Fort Worth Weekly newspaper for your review. Please let me know what I need to send you next. I am confused. Do I need to remit payment right away? Or just send you the signed form and pay at the end of the first quarter completed? When do the quarters end? I don't have a lawyer or anyone to explain what this contract says.

Please feel free to contact me via email or at the cell number listed below at your earliest convenience.

I'd like to send your blood money and get this settled ASAP to preclude your goons from contacting their lawyers if someone should sing Happy Birthday at our all volunteer performance space. In the meantime we promise we will only play local music from CDs provided to us by local musicians between sets , and if anyone even thinks about playing a cover, we will hoist them from the rafters by their guitar strap and leave them as a warning to others.

Keep up your great work protecting artists!

Thanks!
James Watkins




His closing exclamation points are fucking priceless.

The current system of federal copyright law in this country and the ways in which artists are "protected" as a result of that system are both indicative of what happens when powerful special interests run the show in a particular industry, creating an arcane system of regulations that really only seems to benefit a few big fish with really expensive lawyers, while creating unnecessary roadblocks for people that really shouldn't have to deal with them.

Now, I don't debate that copyright law in general is a fundamentally benefitial thing in many ways. Of course artists need to be protected from those that would use their intellectual property in ways that they do not approve. Such protection is obviously a vital part of maintaining a thriving artistic movement in this country. And even the basic idea of what ASCAP does is a good thing, if only in theory. But to apply the same kinds of regulations to places like Metrognome (D.I.Y., independent non-profit venues) as are applied to places like Nokia or Gypsy Tea Room (albeit on a sliding scale) doesn't seem to advance any of the theoretical goals of copyright, artists rights, or any other system of legal protection for artwork. Exactly what are they protecting artists from in this situation? And exactly who is profiting or even receiving a benefit in any way from playing these records at Metrognome? Does Metrognome attract crowds due to its between set playlists? It seems that the only people that might stand to benefit from such exposure are the artists themselves.

ASCAP's behavior in this situation clearly demonstrates yet another fundamental misunderstanding in the music industry concerning when and how artists should be protected, and who they should be protected from. Do you really think the Silver Jews give a shit if 20 kids at an experimental rock show hear one of their songs in between sets? I doubt it, and in fact, I bet they would encourage such practices. Of course I realize that there are an endless number of variables and different things to consider here, and I hope that James and anyone else with experience in dealing with this kind of thing will post in the comment section and provide us more information concerning how ASCAP works, how artists rights work, if non-profit status affects copyright liability, and any other pertinent issues. Of course there probably isn't a lot we can do about ASCAP or copyright regulations, but we probably can figure out ways to help places like Metrognome deal with these things so that we can continue to enjoy the atmosphere of non-traditional venues without being forced to listen to cover versions of "4'33" all night.

35 Comments:

Anonymous djtigerbee said...

How the hell did ASCAP even hear about Metrognome Collective?! So there are DJs operating at alternative venues all over the country and worldwide and they pick on Metrognome? What a bunch of malarky!

7:35 AM  
Blogger jamo said...

SO WHEN ARE THEY GOING TO SUE HAILEY'S, OR THE CAVERN, OR RUBBER GLOVES OR ANY OTHER FUCKING CLUB???!!?!??!!!!?!?!??!?!

9:45 AM  
Blogger james said...

As i understand it, our existence was detected based on an out of date listing in the Texas Music Office, possibly here: http://www.governor.state.tx.us/divisions/music/directory/igtm/igtm_m.htm and at some point when we had received enough press attention, they decided a shake-down was in order, and called the studio. I explained the details of our organization, that we are a not for profit, that we are seeking 501c3 status, and that we exclusively have bands performing original music, and I was told that while we might not be required by law to have a license that it would be a good idea.

We will be paying them %.08 of our gross ticket revenues that is... eight tenths of a percent, or about four cents per admission, with a minimum charge per year of around $200. Its not insurmountable, but it is one more thing we have to remember to do, and quite a bit of paperwork we have to fill out (including a set list of every song played at every show at the club.)

I am pretty upset over the fact that we have to do it, but I don't see much other choice. We generally only have local or touring bands playing original tunes, and between sets we like to play CDs from bands who have given us their music to play. We dont need a license for this kind of material, which is 95% of what we do. But we have had, and want to continue to occasionally have DJ sets, at gallery openings for example; DJ Nature sets, etc... and if an ASCAP agent were to show up on one of those nights, or on a night when someone played a cover tune or sang happy birthday we could be successfully sued out of existence.

If the money that we paid ASCAP were fairly distributed, we wouldnt mind paying. We believe that artists should get paid. (that is why we exist) But, the money we pay to ASCAP gets distributed to their artists based on a top secret equation based on their "random" sampling of a tiny fraction of radio air time, and the artists that we support and represent don't get played on the radio. so even if we play an Eno or Will Oldham track between sets, the money that we paid for the right to do that is going to be sent out to Gwen Stefani or 50 Cent.

We see complying to ASCAP's demands as a necessary evil. The corruption within the music industry is something that we want to fight, and we do our part by providing a noncommercial venue for bands, as an alternative to the alcohol-sales-fueled bars that dominate the scene. We focus on the quality of the bands and building the strength of the community supporting them. It is a shame that we have to pay protection money to keep ourselves from being sued by an organization that puports to represent artists interests, and instead serves as the enforcement arm of the big record labels biggest artists. But since we are seeking to create an alternative to the ongoing mass consumption of the top five moneymaking bands of the minute, in a way we are already on their bad side, and we'd rather pay and keep our dream alive than wind up entangled in a legal battle. But the people should know about the deceptive practices of ASCAP. (and BMI which does exactly the same thing, but havent called us, yet...)

This is a great article on the subject. I havent discussed the issue with a lawyer, but according to the article there are some types of organizations that are exempt from needing ASCAP licenses. These exemptions are the following:
1. religious organizations (during worship only)

2. non-profit educational institutions

3. record stores and other establishments where the primary purpose of playing the music is to sell it

4. government bodies (state and federal)

5. state fairs and agricultural events

6. certain veterans and fraternal organizations during charitable social functions (added in 1982 in a last-minute legislative session, and somewhat suspicious)

7. various "non-commercial" and charitable performances that have no admission charge, commercial intent or paid performers

8. movie houses

We should probably almost fit the Category 2 description, but since we dont have a lawyer, and don't yet have our 501(c)3 status, I am not prepared to fight, since ASCAP puportedly has a 100% legal success record.

On a personal level, the thing that pisses me off the most about all of this is that the huge corporate leviathan that I work for during the day regularly flouts ASCAP regulations, and uses music in their regular sales conventions, where they have an air cannon that shoots money into the crowd.

You think i am kidding, but I am not. We can't afford to buy another big fan, much less air condition our building, and although we try to promote lesser known artists, they want a piece of the action; while a company that wants to use "Hot in Herre" to motivate their salesmen to $2 billion in sales (in 2005) pays nothing.

I know, at this point I am ranting. I apologize. I thought this was all over a few weeks ago, but after the Fort Worth Weekly article I got a little worked up again. I did send copies of the article and my response to our regional "agent" to email addresses that I believe probably belong to the president, vice president, and vice president of memberships of ASCAP.

I wonder about posting those addresses and encouraging people to send in their opinions on the matter.

Anyway thanks for your support, and the only major change for everyone is that in the future we will require that bands provide a setlist after the show so that we can send it in with our quarterly revenue reports. And don't forget to put a cover sheet on your TPS reports.

Thank you!

9:58 AM  
Blogger james said...

jamo: i am sure haileys, the cavern, rubber gloves, etc. are all already ASCAP license holders. in fact all bars (that play any music besides the radio) are supposed to be. there is even a special arm that licenses jukeboxes.

I know that the ASCAP restrictions are why Tiff and Andy's (a tiny Fort Worth bar) stopped having any live performances, they didnt want to deal with the hassle.

10:01 AM  
Blogger wakka-wakka said...

Do they really play Wolfmother at Metrognome. Really?

10:07 AM  
Anonymous zak said...

Hmmm, sounds like a Racket to me. Not surprised though. And as you said... I can't see any indie bands actually recieving any royalty checks from this.

10:27 AM  
Blogger james said...

uh. i dont know that we have, but we certainly would... bring us a copy and we will. we really have been mostly playing cds from bands that dropped them off with us at shows. run chico run has been in reavy rotation. the new marked men definitely will be, i picked it up yesterday and its great.

10:31 AM  
Blogger wakka-wakka said...

You misread my snarkiness. You would never play Wolfmother. They are lame, and you are not lame.

Another thing the FW Weekly got wrong: "local indie" bands and labels can (and do) register with ASCAP and BMI. So you're not necessarily flying under ASCAP's radar if you only play the small guys.

11:18 AM  
Anonymous Anonymous said...

well hopefully the 501c3 status will clear you guys from messing with this.

james, you should check out volunteer lawyers for the arts (http://www.vlany.org/). i have a friend who is a visual artist who said that he contacted them and someone actually met with him in person and was able to provide the counsel he needed pro bono. i'm not sure what there presence is like here in tx but it would probably be worth checking in to.

11:35 AM  
Blogger Cindy said...

Great post SR. There's suddenly an awful lot of ASCAP'ers out on the prowl as of late.

I'd look deeper into this to make sure it's not a scam-o-la.

Another bizarre example is White Rock Coffee in Dallas. They were webcasting live performances, and were contacted by ASCAP, who told them they needed to pay-up because the artists were playing cover songs and it was being webcasted over the 'net.

White Rock Coffee is a little coffee shop that sells coffee and sandwiches and occasionally features solo performers on weekends. WTF?

I think they found out it was indeed some kind of scam.

11:39 AM  
Anonymous djtigerbee said...

The music industry is like the effing mafia!

11:42 AM  
Anonymous Anonymous said...

just to play devil's advocate:

artists voluntarily register with ascap; nobody holds a gun to their head. ascap is just doing their job.

i do think it's ironic that it causes tension between a small independent venue and a small independent artist, both of whom need each other's support.

since ascap is collecting royalties, that money should theoretically go to the artists, but i wonder if ascap keeps a cut too?

never the less, it always looks ugly when a huge corporation hit's up a tiny, struggling DIY for money..

12:02 PM  
Anonymous Anonymous said...

WHAT'S WRONG WITH THE MAFIA???

TONY SOPRANO FOR PRESIDENT!!!

12:04 PM  
Blogger james said...

wakka: gotcha. but as long as we have the artists explicit permission to play the material ascap can't do anything.

anon 10:02:
yes, artists sign with ascap, but generally don't know about how the other side of this stuff works. as stonedranger said, 'the basic idea of what ascap does is a good thing.' I just wish that if we HAVE to pay, that we could submit a log of whose material does get played and that it would be reflected in the royalty checks that ascap cuts.

There really isn't any tension, would any of you musicians really be pissed that we were playing your cd between sets?

also, ASCAP is technically a not for profit. so they don't "keep a cut" but they spend around %20 of what they take in on "operating expenses" including exorbitant parties and events, expensive lawyers, salaries for the employees, and according to the article i linked earlier:

"The rent on their office headquarters in Lincoln Plaza in New York is nearly $4 million a year, or $283,000 a month!"

1:55 PM  
Blogger james said...

oh, and thanks for the lawyers link, i will look into it!

1:56 PM  
Anonymous Anonymous said...

hey james,

maybe "tension" wasn't the best word to use. i was just pointing out the irony of an independent venue being hit up by ascap for playing some independent music.

i'm sure the artist would prefer their music played in your type of venue without you having to pay ascap, but ascap forces forces their hand by virute of their contract..

yeah, it just feels a little fucked up..

3:05 PM  
Blogger threeclife said...

Good stuff. The other alternative is to get Fiery Furnaces, Silver Jews, et.al. to sign off on releases, but they wouldn't do that b/c I'm sure they like the ASCAP $$ they get just as much as my very very indie artists do. Don't musical acts het paid when they play live, then the songwriter's should get paid when their song is played.I bet if the Metrognome "artists" had their artwork used for an "indie" movie they would want to get paid... hmmmm.... ASCAP is a bitch but with all the bastards burning and downloading its the only money many many indie songwriters see these days. And if you don't like the system, join ASCAP b/c the artists control the collection and distribution process. And vote, b/c copyright law has been substantially revised twice since 1998 to deal with digital issues.

ThreeC
www.threecentertainment.com
musician
artist
attorney
indie music publishing administrator
3345 Publishing

3:38 PM  
Blogger stonedranger said...

Interesting.

3:42 PM  
Anonymous LL said...

my friends venue doesn't pay ASCAP b/c they make each band sign a form that says they understand the venue doens't allow cover songs and it says the song they'll be performing they own all the rights to. it's a popular venue in Utah called kilby court had their lawyer create that document and they'll share it with you if you email them

3:43 PM  
Anonymous js said...

reminds me of one of my favorite HST quotes...

The music business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free, and good men die like dogs. There's also a negative side.
-hunter s. thompson

Good luck to the Metrognome getting that all sorted out.

5:39 PM  
Anonymous Anonymous said...

it's always great to need to have a bunch of fucking lawiers at your dance party.

sorry, but here's why this sucks. people should stop nickel and diming everyone just b/c the "digital age" has come around. i'm sorry that tower records can't keep itself afloat, i'm also REAL sorry about blockbuster music and virgin megastores and all the other places who blame the "digital age" for why they can't make a buck.

sorry, it's just a load of shit, those stores make no money because they want $20 for a cd that costs less than a penny to make, and should only cost around $10 once all the production/creation costs are set in. we don't need ascap to get money out to musicians, we need musicians and venues and promoters and producers and songwriters to get their shit together and figure out the whole mess themselves.

i know it's a real "out there" theory, but if people would add things that are WORTH money to their product instead of TAKING more money away from the fans/venues/djs who help keep their music in circulation.... well, maybe they'd come out on top.

i think this is just an example of pure laziness w/in the music industry. SURE people deserve to get paid, but not by something that is the EXACT same as what mafias do ("hey, you gotta raise the price of bread 5 cents, then you give us guys 3 cents and you can keep 2... we're gonna make sure you're 'protected'").

...and i'm sorry, but does van morrison deserve a penny for every time i have to hear some shitty bar band do a cover of GLORIA??? are you fucking kidding me? yeah, it's a "classic" but what-fucking-ever. next creed is going to come around and claim that ASCAP has to pay them more because of what happens when THEY play THEIR songs at THEIR shows. why? because they COULD just make up stuff on the spot, and they need to be protected from themselves.

and if you're a songwriter... look at the fucking contract you sign before you let someone put your song on an album and play it live... MAKE SURE you're getting the money you deserve BEFORE hand. not later on.

This is seriously just showing what a joke the big-business music machine is becoming. They don't care if the music is worth a damn, or WHY people might not be buying their albums... they just want to make sure they get paid. I understand, but i think it's totaly out of line.


i mean, has anyone else noticed how stores in dallas like cd world, good records, etc tend to stay in business while selling cd's for around $5 cheaper (ok, not so much in good records' case... but cd world for sure) and actually having people who know SOMETHING (in cd world case... often not much, but SOMETHING) about music in the store..... contrast that to virgin megastore. 15 year old wanna-be pop-punk princess works the front... she doesn't know nuthin about nuthin. they have 1000s of cd's and she isn't about to dig through them to see if they have the one you want, and she has no opinion on it if it isn't some emo shit. add that to 18.99 cd "sales" and THATS why you run a failing business.... not fucking downloaders.

that's somewhat off-topic i guess, but it all relates b/c i think this all has to do w/ the "digital age" of music... and people need to figure out how to make money in OTHER WAYS than just fining people, keeping people from being able to upload your music, and suing those who download.

...this isn't healthy competition between record lables or cd stores... it's a competition w/ an unlevel playing field that is based on using your money and clout in order to insure that you make as much money as possible while putting forth as little effort as possible.

....and isn't it funny that every top 40 song out there now is basicly the same guy or the same girl singing the same genre-based song over and over again... maybe w/ the invention of some new catchphrase every few months.

they just need to realize that it's not fucking pepsi, it's music. and if it had a face maybe more people would be into it (top 40-wise)

5:49 PM  
Anonymous 2nu said...

that was ponderous, man

11:54 PM  
Anonymous Anonymous said...

cd source!

5:42 AM  
Blogger james said...

Seth, a vice president of memberships from ASCAP was kind enough to have just called me to attempt to assuage my conscience about our license fees by informing me that 3.5 million dollars of the ASCAP licensing pool is distributed to unsigned artists as part of the ASCAPLUS Awards.

Oh, and that 3.5 million that they award to independent artists? That's out of a pool of around $700 million dollars per year. so the total % of ASCAP funds that are allocated to unsigned artists is around %.5

So the $500 total annual amount that musicians won't receive from the Metrognome to cover ASCAP fees, well, technically speaking, Half a percent of it, or uh $2.50 will be divvyed up amongst artists who apply for and win an ASCAPLUS award that could be worth up to $500. Sorry though guys, its an annual award, and the application was due on June 1st. Better luck next year!

12:14 PM  
Anonymous Anonymous said...

this shit sounds like a credit card or some shit.

sign up for ascap pluss for an oportunity to win your money back. the more you use it the more chances you have to win..... fuggin sweet!

...it's like the discover card scam. they pay you, the card owner back money over time, or you earn shit or whatever... where does that money come from? it comes from the excessive fees that any business will have to pay in order to accept discover cards.
...just take money from one place, and pretend like you're 'GIVING IT AWAY!!!"

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