ASCAP Starts To Act Like the RIAA 272
Scott Lockwood writes "Below Average Dave, a Dr. Demento style parody artist, has been shut down by the ASCAP. This collective, acting as badly as the RIAA, is now attempting to ignore the 2 Live Crew Supreme Court decision that parodies are new derivative works. Just like the RIAA, ASCAP seems intent on misrepresents the law. If you know anyone who can help BA Dave in his plight, please contact him." This artist doesn't have the resources to fight the ASCAP, even though the law is pretty clearly on his side. Anyone at the EFF or the ACLU interested?
Starting? (Score:5, Informative)
BMI and ASCAP have been thugs for a long time, threatening bar and club owners for licensing agreements for offering live music. For this reason, AS220 [as220.org] in Providence no longer allows musicians to perform any cover songs!
Starts to?! (Score:5, Informative)
Re:wat (Score:1, Informative)
He needs to do it himself (Score:3, Informative)
The guy needs to contact the EFF himself. They don't often just pick up cases because they get reported on Slashdot. They might take a look if he contacts them though. It doesn't take much effort to do so: http://www.eff.org/about/contact [eff.org]
Incidentally, the ASCAP has a long history of doing dumb stuff. Back in the mid 1990s they got a lot of public flack for trying to sue the Boy Scouts and Girl Scouts.http://www.law.umkc.edu/faculty/projects/ftrials/communications/ASCAP.html [umkc.edu]
Re:wat (Score:2, Informative)
If he'd cited it as Campbell v. Acuff-Rose Music, Inc. [wikipedia.org], he might have done better in the letter.
Re:Starting? (Score:2, Informative)
BMI and ASCAP have been thugs for a long time, threatening bar and club owners for licensing agreements for offering live music. For this reason, AS220 [as220.org] in Providence no longer allows musicians to perform any cover songs!
Um, your link brings me to a photography blog. It does have a word doc [as220.org] that starts out with:
NO COVERS: AS220 has a STRICT ORIGINAL MUSIC ONLY policy! NO COVERS!
As of Nov 1, 2004 AS220 is boycotting BMI, ASCAP and SESACâ(TM)s Blanket License Policies. This means that NO music registered to any of these organizations may be performed or played on the premises. This applies to any sampled material as well.
Honestly, as a performer, I've been pleased with ASCAP. How I understand it is that a bar or establishment pays a modest price (like ~$500 a year?) and all artists can play covers without fear of legal recourse. Sounds like a great deal to me. Doesn't sound very thuggish, does it?
Your favorite bar doesn't think so. Good for them. Heck, even better for originals only bands. Too bad for bands like mine that like to work in Don't Let Me Down by The Beatles every now and then but it's not a deal breaker.
Re:Starting? (Score:5, Informative)
Get a Sirius/XM business account. The business account includes rights to play in your business.
$25/month last I looked.
Re:don't think he'll ASCAPe the charges (Score:2, Informative)
okay, they're scumbags, but... (Score:3, Informative)
One distinction I would like to point out is that ASCAP is *not* like the RIAA -- ASCAP actually pays the artists they represent when they force someone to pay up for licensing purposes.
I don't agree with their stance on this particular issue, or their attempts to charge people who are playing radio (stations that have already paid the ASCAP fees).
But it's an important distinction that they are actually defending the rights of artists, even if those rights are overblown. It's a far cry from the RIAA who will never be handing down a penny of the handful of successful lawsuits they've filed.
The reality of the situation is that there is basically no such thing as a Composers' Union in the US, so ASCAP/BMI association is the only way a composer or songwriter can get reimbursed for the use of their works on an international level.
Re:Paging Ray Beckerman (Score:3, Informative)
Weird Al gets the permission of the people who he is parodying. I believe that this gets around ASCAP.
Re:Paging Ray Beckerman (Score:4, Informative)
Re:Paging Ray Beckerman (Score:5, Informative)
Yes, but that's just to be polite. He doesn't have to, which protected him from Coolio when he proceeded with 'Amish Paradise' even though Coolio claimed that he had not granted permission for the parody.
Re:Soap box, ballot box, and jury box have failed. (Score:4, Informative)
Or you could just use this.
http://www.riaaradar.com/ [riaaradar.com]
Re:Who's Next? (Score:2, Informative)
No, for several reasons.
1.) Having recorded for nearly 30 years, Al knows the ins and outs of what's legal, what he can easily fight, and what he can't.
2.) The original songwriter is credited on all parodies (and polka medleys) meaning Al pays royalties to the original songwriter on all songs recorded on CD or receiving airplay. ASCAP and the original artist are making money from Al.
3.) Al gets permission from the artist before recording a parody, even though it isn't legally necessary. In the case of parodying James Blunt's "You're Beautiful" (as "You're Pitiful") the label (not the artist) withheld permission after recording, so instead of releasing it on the "Straight out of Lynwood" CD, he put out an mp3 from his website. Other parodies for which he doesn't have artist permission, he will perform live in concert, but will not record.
More details at his Wikipedia [wikipedia.org] page.
Parody etc. (Score:2, Informative)
Re:abuse of process? (Score:3, Informative)
There sure are, but that's not germain here.
I think you (and others) may have been tripped up by the "the law is pretty clearly on his side" text in the summary. The submitter apparently took what BA Dave wrote at face value.
What BA Dave apparently doesn't understand is that 2Live Crew ended up paying royalties.
Thankfully, you can create a parody without getting permission from the original author -- the law gives us this right, although court cases usually come down to what's defined as a parody.
However (and this is the crucial point that BA Dave and the submitter missed), if you use a melody written by somebody else, then you must pay a license. This is accomplished through what's known as a "blanket license" or a "mechanical license," which means that you need not get explicit permission from the particular songwriter.
Volunteer Lawyers for the Arts (Score:5, Informative)
Re:Paging Ray Beckerman (Score:5, Informative)
I checked out the FAQ on that site. They write (emphasis mine):
Use in public events
We are happy to allow the use of our soundtracks in public places and during events, commercial or not. However, and for your information, we'd like to remind you that you must receive an official agreement from your national music rights management office (MCPS in UK for example) to be legally compliant.
If the event is private and non-commercial, use of soundtracks is, of course, allowed and not restricted.
Other use (Recording/Streaming/Broadcasting...)
Recording rights of our soundtracks (Whether it's on a specific media or not) is not included in the price.
Prior to any recording of one of our soundtracks, it is mandatory to file for a written authorisation. Any use of any of our available tracks, without prior agreement, is a violation in regards of French Law dated July 3-1985 and International Conventions. Be aware that Moral Copyright allows Songwriters/Composers to forbid any re-use of his work if he finds this use doesn't respect the original design.
I'm not sure about that "moral copyright" part (it may relate to jurisdictions outside the US) but the rest matches my understanding: karaoke-versions.com licenses for private, in-home use, but if you want to broadcast it or record it, you need to get additional authorization -- ie. ASCAP or BMI in the US.
This appears to contradict your statement. Do you have a more comprehensive contract with karaoke-versions.com which allows for recording and broadcast?
covers and parodies (Score:3, Informative)
Actually, anyone is allowed to cover or parody any published song without any permission needed so long as they pay the songwritering royalties. In the case of a parody, those royalties are usually split between the original writer and the writer of the parody, in other words Weird Al himself gets a check from ASCAP or BMI (I'm not sure who he is registered with) for performance. As for his CD's those are covered by the mechanical royalty, which is also split in a very similar way by and handled by the Harry Fox Agency.
He still has to pay (Score:1, Informative)
Knee-jerk reactions aside, the guy still has to pay the songwriter. ASCAP is not claiming that his parodies aren't legal, only that since he's using someone else's music, he has to pay for it. That's the way it works.
Weird Al pays the songwriter for the music in all of his parodies. And yes, he does have to pay. Provided he records a real parody ("Smells Like Nirvana" almost certainly is, "Like A Surgeon" not so much), fair use should protect him if he doesn't get permission to record it, but getting permission ahead of time avoids lawsuits, and that's a good thing. Either way, the songwriter is credited and gets paid.
Many posts here are confusing the issue of "parody is not a copyright violation" with the issue of "if you use someone else's music, you have to pay for it." You'll note that ASCAP never mentions copyright violation in its letters, and never asks that the songs be removed, only that the songwriters whose music is being used get paid.
If I were a lawyer, I would not take this case. He will almost certainly lose.
Re:Volunteer Lawyers for the Arts (Score:5, Informative)
Here in Chicago, we've got an outfit called Lawyers for the Creative Arts [law-arts.org] that I couldn't recommend more highly. They're really nice folks over there and great lawyers. They have helped me and lots of my friends many times.
If you're a Chicago artist or musician or writer and you need a lawyer, this is a great place to go. Just remember, when you hit it big, do something nice for LCA so they can keep helping "starving" artists. They're really easy to get to, too - just a block from the Chicago Ave. Brown Line stop.
Young artists just starting to do a little business ought to get in touch with them even if they don't think they need a lawyer at the moment. They'll not only help you make sure that you're doing things properly, in a legal sense, but they're great at putting creative people in touch with one another, which, even when it doesn't result in some synergistic result, makes you understand that you're not alone.
Re:Paging Ray Beckerman (Score:2, Informative)
The Declaratory Judgment Pain in the Ass (Score:4, Informative)
(1) Take down the website. This stops their claim of damages. They probably have no damages anyway.
(2) Study the law of copyright and federal civil procedure. This could take awhile. Find a lawyer to help explain the rough spots to you. Study up very carefully about Rule 11 sanctions, because the SOBs are going to accuse you of Rule 11 violations if they decide to fight you. You may also be able to claim some damages from them for abuse of copyright--research that too.
(3) File a declaratory judgment action in federal court asking that your rights be determined to be fair use, and seek any damages you are entitled to.
(4) The industry must then respond to your lawsuit. This is VERY expensive to them in relationship to the damages that they can recover (probably zero). It is a bad business decision for them to hunt you down. In THEIR best scenario, they'll have to pay at least a few thousand dollars to kick your ass in a situation where they can't get any money out of you. (If you're a mean, vindictive, son of a bitch, you can get your musician-friends to file their own declaratory judgments actions after your case is over).
(5) If they fight you, do your best. If you win, you're a demigod and you get a federal judge ruling that your use is a fair use. If you lose, what the hell--you fought and you made the corporation pay. If they don't fight you, you get your order saying that your use is a fair use. After you file your lawsuit, they may very well be willing to negotiate (a copyright lawyer is very useful here).
(6) You can keep your costs way down if you represent yourself. They have to pay a lawyer a few hundred dollars an hour. That's your edge.
You can torture those sons of bitches if you know the law and if you're in the right. They know that. They'll sing a different tune when faced with litigation costs.
Re:Starting? (Score:3, Informative)
There is another way around this...
It depends on the number of speakers you are using to entertain your guests. You only have to pay the ASCAP fees if you are using more than 3 speakers. Silly, I know, but this is the line for non-jukebox atmosphere music. So a store, with only a stereo playing (only two speakers) does NOT have to pay ASCAP fees. If that same store had a quadraphonic setup, they would have to pay.
I only learned about this when the owner of three retail shops I was handling the S&R for, was approached to start paying ASCAP fees for the music (We would play CDs in the stores) we played in the background. The rep said we owed X amount for one store, but the other store had to pay no fee. When we asked why, he told us. The rep watched while I was told to remove one of the speakers in the main shop. At that point, he changed the paperwork to reflect that we owed X up to that date, and were not required to pay ASCAP fees as long as we had 3 or fewer speakers connected to each music source. Of course, this was in the 90's.