What powers to ASCAP/BMI have in regards to independent/original music not in their catalog?

July 12, 2006 12:08 PM

Can ASCAP/BMI sue you or levy fees for original music not in their catalog?

A) For live public performance of said songs?
B) For recorded public performance of said songs?
C) For offering for download/streaming of said songs?
D) Or other forms of distribution and performance.

I ask because I've heard all manner of nightmares instigated by ASCAP/BMI, from simply playing the radio in a coffee shop (Not covered by "original music in their catalog" directly, but could be for a theoretical all-indie college/public station) to the newer dranonian rules on webcasts, to offering downloads.

Where does their self-given power to hassle the little guys end?

posted by loquacious to law & government (7 comments total)

Obviously they can sue for whatever they want. Your question really is, can they win? That answer is maybe, tending towards irrelevent, since they can usually out spend on lawyers, to the point that it's just not worth it to fight them. Their primary arguments when someone claims "no licensed music played here" is that no one would want to listen to bands that aren't with them, your promise not to play licensed music isn't trustworthy, and in the case of live musicians, you just can't trust them not to throw a cover song in once and a while.
posted by nomisxid at 12:27 PM on July 12, 2006

They have to be able to cite a specific work in their catalog in order to take action -- if only to be able to separate ASCAP's problems from BMI's.
posted by jjg at 12:35 PM on July 12, 2006

I know the RIAA once sent a cease-and-desist letter to a college website that was offering MP3s of original student compositions. So yeah, they just shoot out the C&Ds and lawsuit threats at any target they think might be too afraid to fight back.
posted by Faint of Butt at 12:42 PM on July 12, 2006

*Legally*, ASCAP and BMI act as agents to their artists, by contract. So, no, they shouldn't have standing to sue you if none of the material at all is covered by an ASCAP or BMI contract, and you could move for dismissal for lack of standing immediately.

IANAL; if my advice breaks anything, you get to keep both pieces. :-)
posted by baylink at 1:01 PM on July 12, 2006

Can ASCAP/BMI sue you or levy fees for original music not in their catalog?

The short answer is no, provided that these are truly original works. The problems come from ASCAP/BMI reps that are paid on commission, who go around threatening people to generate more income, and the fact that ASCAP/BMI legally must defend the rights of their clients in order to retain the rights in the first place.

Are you truly non-infringing? No worries. But you better be sure.
posted by frogan at 1:04 PM on July 12, 2006

Bear in mind that if you play non-ASCAP, non-BMI recordings of public domain works, they'll still sue you claiming that they own copyright on the arrangements.
posted by stet at 4:52 PM on July 12, 2006

Several years ago, one of my friends had a regular gig playing all-original material at a local restaurant. At some point, he and the restaurant owner/manager were shaken down by BMI despite their strict no-covers policy. The BMI rep had apparently just found out performances took place there and assumed that something in their catalog was probably being performed.

If I recall correctly, there was some back-and-forth after the rep was told the material was 100% original, and wouldn't take it at face value. And when it became clear that he wasn't getting anywhere with the argument "surely you must be playing *something* in our incredibly vast catalog" , he switched to something that sounded more like a protection racket: "well, you know, if you sign up and pay dues, you'll never have to worry about getting into a legal dispute." (Yeah. "Nice restaurant. Be a shame if you had to ever rack up so much in legal expenses you couldn't focus on your business.")

But ultimately, nobody got in trouble or had to go to court, so maybe they really are reasonable when it comes down to it, and just like to try the hard sell.

Where does their self-given power to hassle the little guys end?

Legally and ethically, probably where the extent of their catalogue ends. Practically, probably at whatever anti-racketeering statutes your jurisdiction has. The problem is that in between those points, they can do an awful lot of hassling indeed. However, in the case I'm familiar with, apparently being polite but firm and offering an open look at all performance-related activities was enough. Hopefully, that's how most experiences go.
posted by weston at 5:06 PM on July 12, 2006