Penny Royalty

Your article about music licensing [“All Shook Down,” November] was timely and important, but I’d like to make some additional points. All business owners should be aware that playing copyrighted music without permission or a license is a violation of federal copyright law. If such a violation went to court, the violator would have a hard time not getting convicted. The area of negotiation and problems is with the way these organizations disburse the money they collect. They pay it out primarily by sampling what is played on the radio, which is controlled by a few corporations. The people who play at a coffeehouse do not sing songs that get played on these stations. So the license money paid by the coffehouse does not go to the songwriters whose songs are used. In Europe, song lists are turned in to an agency and the money goes to those whose songs are used. This could be done in the U.S., but I think American performing rights organizations are too lazy. With email and Internet, this could be easily done. Another issue is the fees they charge. They are capricious and unreasonable. I think there can be some challenges to these folks, but it has to be done correctly or they will simply take the club to court for copyright violation and burn them as an example. One other copyright issue that may be useful is that copyright is dealt with in the original Constitution. It clearly states that creations (now called “intellectual property”) may be protected by the creator for a limited amount of time. The copyright law of 1906 protected songs for seventeen years, with a renewal possible for an additional seventeen years. This was something clearly intended in our Constitution. The rewrite of 1975 extended that to the life of the composer plus seventy-five years. This was obviously intended to cover any family and estate. This was still reasonable, in my opinion, but it was pushing the envelope. Recently, however, the major corporations that own intellectual property have gotten this extended again to cover their older property. Now it covers the life of the artist life plus ninety-five years. This is the Sonny Bono Extension of the copyright act, and I think a serious argument can be made that this is unconstitutional.
I think that clubs should do what the networks did. They said, “We’ll pay you specifically for each piece we use rather than buy a blanket license.” Then the money would also be credited directly to the real composer. Also, the agents who go after clubs often lie. They will tell them they need a license to do any music live. That is false. Public domain songs can be used, original songs by the performer can be used, and songs for which the performer has permission from the writer can be used. The rest you can cover on a per-song basis, if there are any. If nothing else, this tactic may force them to offer a more reasonable blanket license.
If BMI and ASCAP were forced to actually collect royalties for the songs used, rather than using the radio survey, they might tell small clubs to forget it, or they might charge a nominal fee. A very strong case could be made that they can collect a list of these songs and that they should, since small venue music is seldom played on the stations where they do the sampling.
John R. Kolstad
president, Mill City Music
Minneapolis