How to call off ASCAP?
July 19, 2005 8:19 PM   Subscribe

A friend of mine is a musician and his first album was signed to an independent record label. Now he and the label both want to promote the album to podcasters, but they're worried by the fact that he's registered with ASCAP. ASCAP wants a podcaster to pay $300 for the privilege of promoting his music. The label owner is willing to license the album through Creative Commons, but could a Podcaster still be sued for playing his music? Outside of terminating his contract with ASCAP, how does a signed artist and label go about calling off the ASCAP/BMI dogs? Here's a link to the ASCAP agreement.
posted by Pinwheel to Law & Government (11 answers total) 1 user marked this as a favorite
There is a new show on LA radio Fridays at 11am on Indie 103.1 with Joe Escalante ( Lawyer and Vandal :-) ),
also website here, where you can phone in with exactly these sort of questions.
email address
Maybe some advertising for your friend as well.
With the rise of podcasting it may make the show.
posted by stuartmm at 8:40 PM on July 19, 2005

Very interesting -- I run a label and recently sent out a slew of emails to MP3 bloggers re a new release of ours. I had thought that if the label was cool with specific tracks being podcast or MP3blogged that would be sufficient.

I'll tune in to this thread again & see what people have to say.
posted by omnidrew at 9:27 PM on July 19, 2005

I can tell you one thing: those MP3 bloggers are legally vulnerable, whether you're cool about it or not. Assuming that you've got a traditional copyright, they're breaking it the moment they publically transmit or broadcast the file, and that opens them up to all sorts of trouble.

Podcasting, music and the law is a great article about all of the hoops a Podcaster would have to jump through to clear a copyrighted work for a podcast. It's going to cost them at least $750.

This feels like the Internet radio hitjob all over again.
posted by Pinwheel at 9:34 PM on July 19, 2005

It looks like the contract gives ASCAP the power of attourney where enforcement of distribution and copyright related matters are concerned. There's nothing he can do, really.

Protip: Don't get involved with industry organizations if you want to control your music.
posted by Jairus at 9:56 PM on July 19, 2005

But can ASCAP enforce a copyright nuanced by a Creative Commons agreement?

If a Podcaster downloaded a song with this agreement backing the transaction (from the CC licsense):

"3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:

1. to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works;
2. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works;"

Could ASCAP still sue?
posted by Pinwheel at 10:10 PM on July 19, 2005

Pinwheel, I think CC licensing a song would probably violate the ASCAP ToS or agreement.
posted by Jairus at 10:18 PM on July 19, 2005

Do you think a violation of the ASCAP TOS would merely nullify the agreement, or could the artist be held for some sort of damages?

Does anyone else get the feeling that ASCAP isn't necesarily the best friend that an indie artist could have in the year 2005?
posted by Pinwheel at 10:30 PM on July 19, 2005

I'm really not sure if the artist could be held liable, Pinwheel, but I would guess that it just nullifies the agreement. I can't imagine why an indie artist would ever sign with ASCAP, to be honest.
posted by Jairus at 10:53 PM on July 19, 2005

With Internet Radio, didn't ASCAP finagle it that even if you weren't signed with them, people would have to pay royalties to them, which you would have to sign up with ASCAP to get?
posted by drezdn at 11:20 PM on July 19, 2005

I recently got a shakedown letter from BMI about my Live365 station (it was a mistake, apparently), but one thing it said was that if I was playing licensed music with the permission of the copyright holder, I could send a signed letter stating that I had that permission to BMI and they would let it go. So it is possible that ASCAP does this as well.
posted by litlnemo at 3:33 PM on July 20, 2005

In current ASCAP applications there's a very clear separation of online performance rights (you can specify that ASCAP handles your performance rights only in the physical world and not in the virtual world). In fact, you have to fill out and sign a separate form pertaining to online performance rights, and on this form you say either that you do or you don't want ASCAP handling online rights.

It may be that this guy joined before this was the case -- so he may legally have this option of separating out online rights now, without knowing he has it.
posted by allterrainbrain at 5:01 PM on May 16, 2006

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