Small music venues in struggle over copyrights

The Bucky Walters Band from Arcata played Friday night at Mamma Llama. Live music has returned to Mamma Llama Coffeehouse in Weaverville.

Last Friday the Bucky Walters Band from Arcata took the stage. "It feels great to have the music back," said Steve Friedman, who owns Mamma Llama with his wife, Donna.

The coffeehouse was quiet for several months as the Friedmans sought answers to a dilemma shared with small music venues across the country.
The couple had worked hard to get Mamma Llama's name out, Steve Friedman said—on the Internet, in publications and on radio. "I guess by doing this it put us in the spotlight," he said.

The trouble started in 2007 with e-mails, letters and calls from the American Society of Composers, Authors and Publishers (ASCAP). ASCAP is one of three performing arts organizations in the United States that grant licensees the right to publicly perform the works of their members. Without these licenses, the organizations say, businesses can run afoul of federal copyright law.

The price for an ASCAP license was $800 a year, but the Friedmans doubted the legitimacy of the organization and continued to bring in bands while considering what to do. Then ASCAP sent a researcher to a show by a local band at Mamma Llama, and the band played another musician's song.
"They told us if we didn't get a license, they would take us to court," Steve Friedman said. "So we bought it."

What followed, Friedman said, was a barrage of e-mails, letters and calls from the other two organizations, Broadcast Music Inc. (BMI) and SESAC Inc. Even though he told them he was not playing their music, they were in "attack mode," Friedman said, "very threatening over the phone."

In 2008, the cost of ASCAP license dropped to $350 for smaller venues. BMI and SESAC wanted a similar amount, Friedman said.

Eventually, he said, Donna Friedman threatened to file harassment charges against BMI, and those calls stopped. But SESAC, which represents fewer musicians than the other two organizzations, continued. "Over the phone one of the guys told me they were going to sue us," Friedman said.

Written messages did not go that far, but they did include links to court cases SESAC had won. An e-mail from SESAC stated that penalties for copyright infringements range from $750 to $150,000 per single performance.

"When they threatened to sue I canceled all the music we had," Friedman said.
He let the ASCAP license lapse and e-mailed 19 bands he had booked to explain the situation. The response, even by musicians represented by one of the three entities, was supportive. One was outraged, Friedman said. "She couldn't believe the place she licensed with was cutting her throat."

Articles on the situation at Mamma Llama and other establishments in similar situations
ran in the Christian Science Monitor and USA Today
recently.

A SESAC official did not return a call from the Journal for comment. However, BMI spokesman Jerry Bailey did, and he sees things differently than Friedman.
If BMI has not sent a researcher to an establishment, he said, the calls and letters are "educational."

"We don't threaten anyone unless we know they're playing BMI music for certain," Bailey said, and even then "it's not really a threat, but then they're told what legal action is possible."

He said BMI has not contacted Mamma Llama since July 2007.
Bailey acknowledged that not everyone needs a music license, but said that in most cases when a business says its performers are only playing original music and a researcher is sent, they find that BMI music is being played.

The Friedmans think they can manage. In December they began featuring live music again with the Monsters of Shamisen, after Friedman was assured their Japanese, Celtic and bluegrass music would include no copyrighted material.

Friedman said he finally did get some frank information from an ASCAP representative, and there is a way to have live music without a license.
"I'm not going to have bands play here if they're playing other people's music," he said. "It has to be their own original music," and if they're under the umbrella of an agency, there needs to be a letter from the producer giving up royalties.

Friedman said he will comply with that, although it hurts upand coming bands and denies them the stepping stone many established bands did have.
If a band plays a song by Bob Dylan (signed with SESAC) at a small coffeehouse, "Isn't it more of an honor than a threat?" he asked.
Bailey agreed that a bigname artist whose music is played in a small coffeehouse "probably doesn't know or care."

However, he said, if that performer contracted with BMI to ensure they're getting all the revenues they're entitled to, "it's our commitment," he said. Also, he said, often there is a little-known songwriter behind the star who should get royalties.

Friedman also questioned the percentage of the license cost that goes to the smaller performers as royalties. Bailey said that at BMI, distribution is based on use that can be tracked, including television, radio and international royalties from music played overseas. Music played at coffeehouses, for example, cannot be tracked and is not figured into the royalties.

Friedman thinks the contacts with businesses should have been handled much differently, particularly by BMI and SESAC. Although he has not heard from them for some time, he said, "I know it will start up again."

"I want them to stop scaring people," Friedman said. "Be truthful and tell how you can do without a license."

Furthermore, he said, pricing consideration should be given by all three groups to venues in rural areas, which have a harder time filling the house. "Usually I'm breaking even and I'm totally happy with that," Friedman said. "I enjoy it."