Are "covers" at open mics being squeezed out?

[Brendan @ Heartbreaker Guitars]

Last night went to a really good open mic. They were playin all blues stuff and it started to get boring... great musicians but you can only listen to so many solos. I told my buddy, if somebody steps up and plays a great cover this place would go nuts... sure enough, dude busts into "Crossroads" and every body loved it... so to answer your question... whatever the rules are, they shouldn't outlaw "covers"

[ombudsman]

Originally Posted by devellis

I have decidedly mixed feelings about the whole "cover" issue. As I said earlier, I don't perform but I do have royalty claims that occasionally are infringed upon. So my personal financial interests are closer to those of the composers than the folks at the open mic where a fee hasn't been paid. Nonetheless, I can understand why people aren't pleased at the idea of lawsuits being brought against people who decide to host an open mic for which they don't charge a cover or have a minimum. I don't know whether such people are legally right or not in their concerns but I honestly don't think that they are merely interested in getting something for nothing. And there's certainly no objective evidence to so suggest that that's what their motivation is. Some believe that a fundamental, valuable, and longstanding aspect of our culture is threatened by restrictions on material that exemplify that culture. I can't say whether they're right or wrong in that view but I can at least imagine why they would feel that way. I can also understand why artists, whose contributions to our enrichment are often given short shrift, feel that their interests need to be rigorously guarded. I don't fault them in the least for feeling that way. I have no argument with supporting that position as long as unfounded assumptions about others don't insinuate themselves into the discussion.

It's not the substance of this argument that puzzles me. I can understand both sides or at least why there would be strong feelings on both sides. But the tone of the argument at times does leave me a bit befuddled.

Italics mine to indicate a part I am particularly replying to:

I agree that those businesses don't see themselves as trying to get something for nothing - because they are taking the value of song authorship and the interests of the writers to control their fates to some degree, for granted.

It's not just the money at stake here (although it matters, and I'm guessing it matters more for songwriters than it does for bar/coffehouse owners); it's the larger issue of intellectual property being taken for granted, and the all out assault on all forms of IP which is the larger context. Hence the slippery slope argument I made before.

Many consumers know that they IP theft is difficult or impossible to police at this time, and they're not only taking advantage of that, but they're also trying to us that as leverage for a direct assault on IP itself, or at least some enshrining of the current status quo into some sort of permanent legitimized state. There's simply a lot more people that want free stuff than there are people who make IP that has value, and our pandering-based media and politics reflect that very clearly.

Businesses using music or video is a relatively more strongly defended area of IP due the history and infrastructure for payment and the fact that we aren't talking about large numbers of people taking a few things each, but rather a smaller number entities taking in bulk where there is a clear revenue stream associated with the use of IP. It actually makes financial sense to thoroughly check and collect from all businesses and make some examples of a few that go into open rebellion so the rest (ie the source of most of the income) know that there are means in place to sue them as well - and win - if they don't pay their obligations.

It's not about the public relations aspect of just the few businesses that do get sued, it's about not having to sue the rest and keeping up the high collection rate and high payout rate to the writers that these organizations maintain.

Every person that hears about this sort of thing in the media or a board like this, and comes out of it saying something to themself like "I didn't realize this stuff was actually taken seriously and these businesses really are paying for the music they use" is not a public relations problem - those are public relations victories.

[devellis]

Ombudsman -- well thought-out post. I see what you're saying. I'm not quite as concerned about there being a slippery slope regarding IP more broadly, although the IP I produce (academic stuff) isn't as widely consumed as music and the issues aren't exactly the same.

IP is certainly being rethought. My hope (and there's some evidence of this in academics, at least) is that open-source publishing won't deny creators to acknowledgment and ownership of their intellectual property but it well might eliminate some of the middle men. In some cases, that's explicitly the goal.

Libraries have pushed the idea of open access fairly aggressively, feeling that publishers take advantage of providers (in some cases, requiring fees to offset publication costs for peer-reviewed papers despite collecting very substantial advertising fees through the journals) and consumers (charging individuals, and especially libraries, quite hefty subscription rates well beyond their costs). For medical journals, it isn't unheard of for a publisher to pay the medical association that "owns" the journal a fee in excess of a million dollars a year for the right to collect subscription fees and advertising revenues. Meanwhile, the authors are charged page fees for their published papers and libraries have to pay substantially more than the already-hefty individual subscription prices.

The proposed model is that IP can be widely consumed (usually through electronic availability) without user fees as long as credit for its origination is explicitly acknowledged and the usage doesn't entail profit-making. Professional organizations whose journals don't have the well-heeled advertiser base that medical journals have are active participants in this process in many cases. If IP is being sold (as in compilation-form), then the authors are entitled to remuneration. If it's being used in a not-for-profit way, it's freely available online. The model isn't yet the norm but it's gaining traction.

I can understand why this might not work well for music because the basis for income is different in that realm. The widespread view that the open source model is highly ethical when all parties agree to it may be why some people feel (incorrectly, since the artists haven't signed on) that not-for-profit use of IP is legit in realms other than academics, like music.

Through the back-and-forth in this thread, I've come to understand some of the key differences between IP issues as I've encountered them as an author whose work is sometimes reproduced for individual use without permission and the more complicated issues surrounding music covers. My heart tells me that covers at open mics where there's no cover or minimum and no one is getting paid aren't such a bad thing. But my head now understands better why others see the issue differently. Thanks for shedding some useful light on the matter.

[ombudsman]

thank you devellis

[Berny]

So the question I'd like answered is; what songs can be covered because they no longer have attached copyright, i.e post 70 year timeframe songs etc? Is there a list of either those that can or can't be played??? And, can the copyright be rebirthed/reclaimed/owned in some manner by an author or music trader co, after the 70yr expiry?

And I suppose I can assume that the life of the busker is over, given the serious implementation of all this ownership of sounds.

Do fees apply to marching bands playing military songs and or National anthems? Have the rights to church hymns been claimed by private enterprise and do these attract fees? What about bird calls or car horn noises [seems ridiculous I know, but then....]

Are the deeds to all this music available somewhere in the PD for edification? Who decides if music is in fact an original creation and licensable?

I suspect I need to seriously start writing my own music/songs.............. Any particular notes/chords been claimed?? I'm guessing I can use our language for free???

[KevWind]

Originally Posted by ombudsman

No, that's the atypical example. More often than not the performer or their (very small) "publishing company" (an entity that exists for the sole purpose of receiving publishing funds while giving the writer flexibility to not have to report that income directly on their personal tax return) retain the rights to their publishing. Whatever company name you see next to "ASCAP" or "BMI" on a record or CD is the publishing company, typically it is not the record company or any large company. Sometimes it will be another songwriters publishing company or one that works with many writers, taking a cut in exchange for handling the paperwork, which makes sense if the publishing income is small.

Apparently either I was not clear or you misunderstood the context of my statement which was inclusive with the portion of my statement that you left out of the quote. And I agree what your saying is often true in terms of royalty splits, unfortunately it does not actually apply to the context my statement.

My entire paragraph was directly under and in direct response to Berny's first paragraph. Where he was talking about continuing royalty collection after the death of the songwriter, but was unclear as to the particulars of posthumous copyright collection and thinking that ASCAP must have purchased the rights.

Berny's statement:
"On the one hand we are told that ASCAP are collecting the dues for songwriters, but now I see that even after the songwriter has passed on, ASCAP are still collecting fees because, I assume, they have claimed/secured [I assume purchased] the rights to the music and will require royalties for....ever? Now this seems just a tad ridiculous to me".

My full statement:

You are partially correct. In general Copyrights for the songwriter extend 70 years after death ( for songs written after 1978 when the law was rewritten and I believe songs prior to 1978 had a 50 yr time frame) . However the typical situation is, upon death the ownership of the Copyrights transfers to the rightful heirs of the songwriter.
Except where the songwriter has prior to death transferred or sold those rights to a third party. Which is typically not the PRO, (generic acronym for Performing Rights Organizations like ASCAP BMI and SESAC)that handles the collection of royalties for those rights. But as far as I know it is typically a third party (not the PRO) that has purchased the rights to a songwriters catalog. The most famous of these situations was when Michael Jackson ended up purchasing the rights to aprox 250 Beatles songs. Which He ended up selling to SONY.

(not the PRO) not in my original statement included for better clarity



Note: I did not say 3rd party purchases were typical. What I said was that when royalties are being paid posthumously to someone or a business entity, other then direct heirs of the original copyright holders it is typically a third party and is not The PRO paying itself.

The Beatles got some characteristically bad advice from Brian Epstien in the early 60s and set up Northern Songs as a tax shelter because of post war capital gains tax rates that were still in effect in the UK at that time. However they made it a publicly traded company, and then they lost control of it because they hadn't bothered to secure controlling interest.

Yes I am aware of the particulars, If this is what you are calling not typical I completely agree
Note:. I did not say the Beatles/Jackson situation was typical of 3rd party purchases
I said the Beatles/Jackson was the most famous (i.e the most press) situation, where a third party has purchased the rights.

I hope this is more clear.

[royd]

Originally Posted by Berny

So the question I'd like answered is; what songs can be covered because they no longer have attached copyright, i.e post 70 year timeframe songs etc? Is there a list of either those that can or can't be played??? And, can the copyright be rebirthed/reclaimed/owned in some manner by an author or music trader co, after the 70yr expiry?

there are websites online that you can search for public domain songs.

Yes, a copyright can be "rebirthed" sort of... One can copyright an arrangement of a public domain piece which can effectively removes the piece from public domain as playing any part of it can be liable for infringement.

And I suppose I can assume that the life of the busker is over, given the serious implementation of all this ownership of sounds.

at least at this point, the license is purchased by a venue, not the individual musician so buskers need not worry yet. Mechanical licenses which are required for recording something are a different matter.

Who decides if music is in fact an original creation and licensable?

That is a good question. I remember a class in college (I was a music major) where a composition professor said that every possible melody had been written by the 14th century. I don't know where she got that idea, but it does raise the question in an interesting way. Popular wisdom accuses some musicians, especially the folk in Led Zeppelin, of taking old blues songs, making a minor change and copyrighting them. Does that really qualify as intellectual property (I am making no accusations, just asking a theoretical question)?

I suspect I need to seriously start writing my own music/songs.............. Any particular notes/chords been claimed?? I'm guessing I can use our language for free???

maybe not

[ombudsman]

Originally Posted by KevWind

My entire paragraph was directly under and in direct response to Berny's first paragraph. Where he was talking about continuing royalty collection after the death of the songwriter, but was unclear as to the particulars of posthumous copyright collection and thinking that ASCAP must have purchased the rights.

Sorry for misunderstanding. Right, I don't think BMI or ASCAP themselves own the rights to any songs.

Copyrights that are not otherwise assigned before death of course become part of the estate, and like everyone else songwriters leave their property to their family, or other people or organizations they choose. For many creative people, it may be the main or only asset left to their families, and after their death that asset may also stand as collateral for loans or part of a licensing contract that was used for expenses during their life.

My point being it's their business what they do with it while the copyright stands, just like it's anyone else's business who they leave their earthly possessions to. I find it offensive that people openly talk about just arbitrarily taking away their property upon their demise as if there was some justification for creating a(nother) double standard that treats artists worse than everybody else. (Understood that this was not your argument KevWind.) Let's not pretend this is about "fairness"; that kind of talk of picking over a fresh corpse is transparently about greed, it's no better than the first person on the scene sliding the watch off the wrist of a body found in the street because they "won't miss it", and is unbecoming of polite conversation.

Unlike the results of other kinds of labor, intellectual property is automatically communized after an arbitary amount of time. I have always thought this was an outrageous policy , but the deal is that it's supposed to be fully protected (in particular ways spelled out by copyright law) until the expiration. I wish there was some legal means to challenge copyright expiration on the grounds that society is not holding up it's end of the deal by respecting the work for the full allotment of time before it claims it's pound of flesh.

[tonyo]

I've been to about a dozen open mics in recent months, well over 90% of the songs played there have been covers.

[Berny]

Originally Posted by Lazmo

I’m not against song composers getting their dues.

But, it’s a real shame that one of the most prolific grass roots scenes of the current amateur music world (open mics) has to suffer a near terminal death because of a singular self-fulfilling corporate desire to muscle funds for the chosen music elite few, from small fry business owners trying to eek out a living.

If the pass through was equitable… in other words, the recovered funds actually went to the multifarious artists whose songs were actually “covered” at these open mics, then the whole thing would be tolerable, but since that is clearly not the case… it reeks of being a corporate lawyer based strong arm scam, that uses fear mongering and righteousness to force its will upon small business.

I think open mics are fantastic, and they definitely are one of the few things in the music scene that we should protect. Open mics present endless opportunities for performers at all levels to play to the public, enriching the performance experience of the player and the viewing/listening experience of the public, at the same time.

I’m not against the fee… assuming it does not provoke a yes/no decision to the business for the very survival of that particular open mic. For one year, I was the “house” drummer (and occasional guitar) at a very popular open mic… and the place was packed every Sunday and surely could afford a fee… but this is Australia, and we are not in your licensing boat, yet.

If we have to choose whether the elite few (and a bunch of corporate lawyers) get even richer and/or whether the amateur open mic scene survives… then hopefully it will be the latter… otherwise the WORLD will surely be a poorer place.

And the small businesses don't even get charged for actual services provided, just a simple, arbitrary seller mandate. Lets hope the thing never gets traction here in Oz!

[Gasworker]

What a thread! I am going to the doctor to see if I can get my attention span fixed. All of the innuendo, analogy, and my personal favourite "I think" being passed off for fact has damaged me. I can't help but notice a lot of the song writers on this forum have taken a pass on this thread. Been there , seen it, done it.
I hate myself for this but I have to ask. Is there any evidence that the open mic is one of the most prolific grass roots scenes in amateur music?

[KevWind]

Originally Posted by ombudsman

Sorry for misunderstanding. Right, I don't think BMI or ASCAP themselves own the rights to any songs.

Copyrights that are not otherwise assigned before death of course become part of the estate, and like everyone else songwriters leave their property to their family, or other people or organizations they choose. For many creative people, it may be the main or only asset left to their families, and after their death that asset may also stand as collateral for loans or part of a licensing contract that was used for expenses during their life.

My point being it's their business what they do with it while the copyright stands, just like it's anyone else's business who they leave their earthly possessions to. I find it offensive that people openly talk about just arbitrarily taking away their property upon their demise as if there was some justification for creating a(nother) double standard that treats artists worse than everybody else. (Understood that this was not your argument KevWind.) Let's not pretend this is about "fairness"; that kind of talk of picking over a fresh corpse is transparently about greed, it's no better than the first person on the scene sliding the watch off the wrist of a body found in the street because they "won't miss it", and is unbecoming of polite conversation.

Unlike the results of other kinds of labor, intellectual property is automatically communized after an arbitary amount of time. I have always thought this was an outrageous policy , but the deal is that it's supposed to be fully protected (in particular ways spelled out by copyright law) until the expiration. I wish there was some legal means to challenge copyright expiration on the grounds that society is not holding up it's end of the deal by respecting the work for the full allotment of time before it claims it's pound of flesh.

Mostly agree. For those who may not know there have been at least two improvements on that horizon. One being the extension from 50 to 70 years after death and the other was the change in Tax Law several years ago, where do the efforts the NSAI, the tax base for the sale of a songwriters catalog is now treated as a capital gain instead of it formerly being income. (for as long as capital gains remain lower than the highest income bracket)

[riorider]

As this thread is well past the 300 mark, I'm going to go ahead and close it.

I was disappointed in some of the personal attacks and comments in many posts. If you open up this discussion in another thread, please try to understand and respond to what the other person is saying, and to present diplomatically your own thoughts and ideas as opposed to criticizing or tearing down the other person's post.

If you will keep your posts courteous - as though you were discussing them within earshot of your grandmother whom you love dearly - that is the supportive "tone" we are seeking to preserve and encourage here on the AGF.

Thanks all,

Phil