Venues Ask: Do I Have To Pay Those BMI Fees?

Small Venues Often Have Trouble Paying Royalty Fees

Small venues and music festivals often call me with the question: Do I have to pay those BMI or ASCAP fees? The answer is... well, you should, and the real problem is BMI and ASCAP's organizational attitude towards small and non-profit venues, not the fees themselves. 

In truth, these organizations fulfill a vital role for musicians. They collect royalties from all the venues where copyrighted music is played -- radio stations, cafes, juke boxes -- and pay royalties to their member musicians. If you are a musician, join one of these entities, and you'll start getting checks in the mail from them. Granted, if you're a local New England folk band, those checks will be in the pennies range. But they will grow -- and you never know where they will lead. My retirement-age folk musician friends get checks from these entities sufficient enough to pay, well, at least part of their beer bills. 

If BMI and ASCAP didn't do this, then each musician would have to monitor millions of play lists and send bills for their royalties each time one of their original songs or copyrighted arrangements was played--and we know that would never happen. BMI and ASCAP work on a simple principle of fairness and to prevent exploitation -- if a bar or restaurant is making money, i.e. selling food and liquor, by enticing in customers with MY music, then I really should be getting paid. They are making money off of me, and I deserve my due. But as in many ethical situations, the way it works on the ground is more complicated.

In order to pay the musicians their due, BMI and ASCAP collect annual fees from any venue with a jukebox or live music. (If you play the radio, or television, or Pandora, in your establishment, those entities pay the BMI and ASCAP fees.)  Those fees are not too high compared to, say, your liquor license -- but one big problem is that the cheapest fees are not cheap enough for the tiny New England open-mic coffeehouses that provide a venue for music more as a community service than as a money-maker. All-volunteer festivals, nursing homes that have local bands come in and play one day a week, and non-profit teen centers with open mics all should be paying royalty fees to the musicians whose work is performed there--being a non-profit or not charging money for an event does not exempt you from copyright laws--and the easiest way to do that is to pay BMI and ASCAP. But often these venues simply don't have the do-re-mi.

Then comes the attitude problem. The sales reps from BMI and ASCAP often approach venues with an arm-twisting, threatening attitude: Pay or we'll sue. This leads venues to despise them or at best begrudgingly pay while mumbling about what jerks these folks are. Maybe this works in New York City, where venue owners are used to protection rackets. It's counterproductive for community coffeehouses and church concert series in small northern New England towns. 

I wish that BMI and ASCAP would:

--Offer very cheap fee structures for nonprofit and small community ventures with, say, under 30 seats--better yet, get sponsorship from those muti-million dollar entertainment industry giants and offer free membership for these nonprofit and tiny ventures. This will bring more venues happily into the fold, encouraging the spread of live music, and getting the musicians who play at such things a leg up into the music performance industry.

 --Provide all venues, but particularly small and nonprofit venues, with a publicity packet that helps the venue tell the world that they are contributing, through BMI and ASCAP, to supporting musicians. Why not some, 'we support live music' decals, bumperstickers, t-shirts; why not some digital logos that can go on all the venue's posters and advertisements announcing live music? Make these entities something venues and musicians are proud to join, instead of a necessary evil.

--hire some new salespeople, and get a new attitude that SUPPORTS the small end of the music industry scale, rather than serving as a strongarm for the mega-industry end of things. 

Read more about royalty license fees here, in an article I wrote last year for the online newspaper Vermont Digger.

Musicians and venue owners -- how do YOU feel about paying and receiving BMI/ASCAP fees?

Band Law Basics -- A Workshop for the Musicians of the Keene Music Festival

http://bandbiz101.blogspot.com/

BAND LAW BASICS

A WORKSHOP for the MUSICIANS of the KEENE MUSIC FESTIVAL

1.  BAND BUSINESS FORMATION

n    -- Informal, no business structure or legal name. Each band member owns their own equipment. Can create problems when getting paid by check, has to be to one of the band members, and that person then has to claim the money as income. Can’t have a band bank account or credit card (like a Musician’s Friend account).  Might create conflicts if one band member is putting out large amounts of money for things like PA or lighting systems. Can create conflicts over use of name after band changes, and have to be clear about who owns what copyrights for originals.

n     -- Legal name/trade name/fictitious name registration. Person listed on the registration owns the name. Have to file and pay for renewals regularly. Can get an EIN for a trade name, which would allow for opening bank account and possibly getting credit cards in the trade name, but the person/s whose name its registered to are wholly responsible for payments and reporting the income.

n      --Partnership agreement. Can be informal but should be in writing; can spell out all the issues like who gets to use name, who can perform songs, what happens to equipment or income from CD or download sales after one person leaves the band.

n        --LLC or other small form of incorporation. Creates a legal entity for the band which is separate from the band members. The band is then its own legal ‘person.’ Can set up rules for what happens to a member’s share of the LLC if they leave the band. Can put all the band equipment in the LLC or corporate name, protecting it from bankruptcy or divorce of the individual band members. But not necessarily appropriate for young bands or pick-up groups likely to change membership frequently

2.  COPYRIGHTS

n     --Your creative works are copyrighted to you the minute you ‘fix them in a tangible medium’ – that is, get them out of your head and onto paper or a digital track or tape.

n    ---However, in order to defend your copyright legally by suing copyright infringers, you need to register the copyright with the copyright office. This is cheap and easy to do and can be done online. Register a whole collection/album at once to be even cheaper.

n      --www.copyright.gov  Get to know it, make it your friend. Read it often, check all the FAQs and fact sheets regarding music.

n     --You can perform other people’s music – i.e., covers – at any live venue, but if the venue is not paying its ASCAP/BMI dues, then in theory you are responsible for paying the royalties. It’s exceedingly rare for anyone to go after musicians who played covers live, however. But they do go after venues that are having music performance and not paying into ASCAP or BMI.

n     --A tricky issue arises because when you play live, people record you and then post those recordings. Some artists/record companies do come after people who post copyrighted recordings.

n    --Get a license before recording any covers, audio or video. If someone is going to videotape your live performance for local TV or a website, review your setlist and clue them in to shut off cameras for copyrighted material.

n     --Play your own originals as well as traditional music, and you’ll be fine. Sampling without permission is a big copyright problem; create your own tracks of classical, traditional or your original music to run samples from, or obtain samples with permission from Creative Commons sites.

Call to Action: Persuading Fans to Get Off the Couch

What's the difference between letting people know about an upcoming gig, and getting them to actually come out for it? It's a principle of persuasion known in the political and public speaking fields as a Call to Action.

The importance of moving beyond spreading-the-word and instilling actual motivation was recently illustrated by Invisible Children's Kony 2012 campaign. Invisible Children's Kony 2012 video urging US military action against the notorious African warlord was held up as the poster child for effective viral social media activism. The video was viewed by tens of millions of people, and raised money through online donations and through merchandise sales at college campuses across the U.S. 

One focus of the video was to promote an event on April 20, 2012, called Cover the Night. The theory was that millions of college students would spend the night plastering walls with posters and murals advocating that the U.S. stop at nothing to secure Kony's capture.

Despite the viral popularity of the video, however, almost no one showed up on April 20, and Cover the Night didn't happen. What was the disconnect?

There were actually two main disconnects, one being that the Invisible Children leader who had made the video and focused the video's message strongly on himself and his own righteousness, had a very public breakdown when the film was subject to cultural criticism. News reports talked about being naked and beating on cars in the street, and the family begged for privacy. College students looking for a leader drifted away from the cause instantly when that leader collapsed.

Take away lesson for bands: If you are basing your marketing around an individual front-person, make sure that person is up for the task. If you are trying to sell your fans on the idea of coming out to see Joe or Mary Rock Star, then Joe or Mary Rock Star better be there with bells and whistles on to give them the show they want, and not stuck in a drunk tank or sitting home with a cold having a break down because the stress of popularity is too much to handle.

The other main disconnect was the content of the message, which was lacking in the elements needed for genuine persuasion. Key among these elements is convincing your audience that the experience they will have coming to your event is far superior than that they will have sitting home on the couch. This usually involves offering your audience a choice to stay home or go out, while making it clear that they will regret it if they stay home.

The Kony Cover the Night event encouraged people to participate in activities for which they might get arrested for vandalism and property damage (plastering posters on private and public property), but most importantly for which there was no image offered of how great their night or next day would be if they did this. There was no hint offered that the audience would regret not going out that night -- so not going out became the easier, default course of action.

Take away lesson for bands: It takes a lot of effort to come out to one of your gigs. It means paying money for transportation and tickets and drinks; it means being too tired the next day to work or spend time with friends and family; it means getting pried out of the comfort zone of the couch and whatever video games or TV shows the person would otherwise be cozily engaged in that night. You need to convey to your audience that the experience of coming out to your show will far, far outweigh these negatives. Make it clear that they will have a great time, and if their friends go and they don't, they'll totally regret that they weren't there. Don't belittle them; don't tell them that they owe it to you or that you're broke and if they were really a friend they'd come see you; don't guilt or berate them into going. Persuade them that they will leave your show feeling happier than they have ever felt.

And then, of course -- deliver. Make your audience smile, laugh, dance, hug one another, feel the love, and leave wanting more. Make sure they go back and tell their friends -- Yah shoulda been there!

Fair Use Basics: Tunes and Lyrics

Performing a play written by someone else is not a 'Fair Use' of the script.

Students often get a bad impression from their teachers about what comprises 'Fair Use' under the copyright laws.  Students are taught that if they correctly quote something, and include appropriate attribution to the correct source or author, that the use is academically fair. It's only when students try to pass off something somebody else wrote as their own work that they get in trouble. 

The reason those students get in trouble is the issue of plagiarism. This is a matter of academic ethics -- but not a matter of copyright law. Out in the non-scholastic real world, it doesn't matter whether you include correct attributions or not -- if you include a part of someone else's song, lyrics, novel, poem, advertising copy, or other copyrighted creative work in one of your copyrighted creative works without their permission, you've violated that person's copyright.  Yes, even if you put their name on it. 

But since it's the law, there are some exceptions. Of course. Section 107 of the U.S. Copyright statute provides an exception to a creator’s exclusive copyrights for ‘fair use.’  The fair use provision states that use of a copyrighted work or image  “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

The statutory factors used to determine whether any particular use of a work is ‘fair use’ include: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or value of the copyrighted work.”

If you are a songwriter, or a band, it is nearly certain that you are not a duly organized and IRS approved non-profit educational institution.  You write and perform music most likely with the full intention of making money at it. Some people are otherwise gainfully employed or retired and play mostly for free--but this doesn't make them a non-profit educational institution. If you are performing, recording, selling CDs, getting paid for gigs, or playing for free at places like farmers markets where your role is to help other people make money, your music is what the copyright statute means by, 'of a commercial nature.'

Therefore, if you are inserting pieces of other people's tunes, lyrics, novels, poems, movie lines, or anything else under copyright into your music, you will not be able to successfully claim that you were protected by the fair use doctrine. You will be guilty of copyright violations--and you just might get sued. Those re-makes of classic 80s tunes you hear cut into modern hiphop or pop commercial tunes today? Those songwriters purchased a license to do that--or, more likely, the copyright was already owned by the same music industry corporation that did the re-make. 

Find the copyright owner, and get permission. License before you splice. But you've got your own sound anyway--why do you need someone else's?

Non-Standard Venues

I get a chuckle out of those online calendar entries we have to do eight different times now, since all the various social media sites calendars don't talk to each other. And of course, they all ask for different information in a different order (quick, Joe, what's the zip code for that gig we're doing in October...) which bogs it down even further. But somewhere in the template for each one, you're usually asked to check a box indicating whether this is a 'Standard' or 'Non-Standard' Venue.

Standard venues are concert halls, bars and restaurants that have live music events often enough to make it into the calendar's data base. Be warned, if you click 'Standard Venue' and your venue isn't in the database, you'll be asked if you want to add it, and if you do that, you'll be spending the next half hour answering questions about the venue's capacity, street address and zip code, name of the manager, genres of music, whether it's over 21 only, and on and on. If you want to help out the venue--or help yourself out because you play there often so it'll be faster to list your gig next time, by all means go ahead.Otherwise, click on 'Non-Standard Venue' or whatever your particular calendar's equivalent nomenclature may be.

Non-Standard Venues are all the other millions of places in the world most of us play on a regular basis, especially bands that are just starting out or bands that play things other than rock covers. Uncle Mike's barbecue, farmers markets, art exhibits, elementary school arts programs, summer camps, conference dinners, weddings, and the Burlington Vermont City Marathon, where our friends Longford Row just played yesterday and got fantastic t.v. news coverage in the process, are all 'Non-Standard Venues,' in online calendar parlance.

Don't let the arbitrary name fool you--non-standard venues can often wind up being as lucrative and worthwhile as standard venues, if not moreso. People at bars and restaurants are often spending their money on, well, drink and food, not CDs. Folks at a farmers market, coffeeshop or street fair are there to spend money but haven't made up their minds on what yet, and more importantly, they are happy to stop, linger, chat, pick up your business card, remember your name and look at your website or Facebook page later. Unless you're headlining at a music hall in a community renowned for its support of musicians, that community arts walk gig might just be the best one you've played all week.

What's the most surprisingly successful non-standard venue you've ever played at?

Tribes: Build Your Band Clan

A book review in a band blog? I promise this one won't bog you down. It's cheap, short, and it helped jell a lot of things that had been rumbling around in my brain about marketing a band. Author Seth Godin has published one hell of a lot of quick management and leadership books. This one puts leadership in the context of the new marketing environment that exists in the world of global instantaneous communications. Long and short of it: You need to build a tribe by defining commonalities of interest and then creating a forum for folks who share those commonalities to communicate with one another. It's an outgrowth of branding--or takes branding to a new level, one that focuses on the people who define themselves as those who share and partake in your product -- i.e., your fans -- just as strongly as it focuses on the product itself -- i.e., your music, CDs, videos etc.

Pick it up, read it on the beach, see if it resonates with you. Rock on, and lead your people!

Niche Marketing: Define Yourself

Jazz pianist.
Irish pub band.
Gypsy dance music.
Cajun. Zydeco.
Bagpipes--like the Catamount Pipe Band in the photo.
Cowboy ballad singer.
Love-song duets.
Classic rock covers.

Is marketing your music in a niche liberating and lucrative, or does it restrict your gig and development options? I tend to think that clearly defining your sound and consistently marketing to venues and audiences that connect with that sound is a more successful strategy than trying to be all musical things to all people, no matter how talented and diverse your musical skills may be.

My band partner and I both have long experience in rock bands, though mine were more garage party bands and he ran a serious bar band circuit in Connecticut some years ago. I came through a school district with a huge music program and have lifelong classical orchestral and concert piano training, as well as jazz band. I continue to love jazz and blues, and write copious quantities of jazz and country blues ballads.

We occasionally slink in a bluesy piece to close out the night, or if we see that there are people up slow dancing we might segue a few of those into the set spontaneously. But otherwise, we stick with being an Irish music band. 

We've even taken this one step further in defining who we are to distinguish ourselves from the slate of other Irish bar bands out there. We refer to our sound as The Music of Irish America, with an emphasis on the immigration experience. We also market specific historic music programs, playing authentic 19th century music at Civil War encampments and re-enactment events, and music of the early 20th century immigration era at history fairs and Irish cultural organizations. We have another specialty program of music based on Irish poetry and literature, which we perform at bookstores and writer's conferences.

Granted, these programs won't get us booked at the House of Blues, but there are thousands of bands who fit the House of Blues' performance niches--and most of them can't play where we do. Remember September rocks the legendary Toad's Place in New Haven, Connecticut, a venue which probably would not ever call us up, but, awesome as they are, they probably wouldn't work in the coffeehouse circuit that we play. An upscale resort or martini bar won't likely hire us unless there's an Irish-themed event, but they might well hire our friend Gena McGuire which is fine for us, and she probably doesn't get a lot of calls to play Half-St.-Pat's parties, either.  We all give up some options but gain others.

No matter your musical genre, it is important to both INCLUDE yourself in a clearly-defined category of music that potentially listeners and venues will understand and relate to -- rock, Celtic, klezmer, whatever--as well as to then DIFFERENTIATE yourself within that category to demonstrate which points you excel at, which is why folks should listen to you. If you are a Southern rock band, you don't want to waste your time marketing to folks who listen to nothing but opera, but you also want to tell Southern rock fans --and perhaps fringe cross-over folks like fans of classic rock, rockabilly and heavy country--why they should sit up and take notice of you.

Tell them who you are--and play your heart out.