Wednesday, June 22, 2016

Businesses are Sued for Playing Copyrighted Music without Paying Fees

Mike Cheel emails:
What's your take on this?

"On a Friday night in November 2014, the band at Tadpole's bar and restaurant in Brandon played hits such as Jimmy Buffett's Margaritaville, Hank Williams Jr.'s Blues Man and Brantley Gilbert's
Not everyone in the audience was there to enjoy the music.

"Among them was a 'music researcher' hired by Broadcast Music Inc., or BMI, to document the performance.

"Tadpole's hadn't paid licensing fees for those copyright-protected songs. A few months later, the owners landed in federal court for that night's performance. Unable to absorb a settlement of $30,000, Tadpole's closed last spring."

It doesn't seem complicated to me. The songs are the creations of  Jimmy Buffett and Hank Williams Jr. How does it make sense for anyone other than the creators of the songs to set the rules under which the songs should be played?

I consider it coercive and the utmost in arrogance for someone other than the creators of songs to think they should set the rules for use of  songs over the rules set by the creators of the song.



  1. {..."In theory, the band is just as liable for the copyright infringement," Comparetto said. "But the band's got no money."

    ...One Tampa singer and songwriter, John Cena, has been in the industry for more than 30 years, but said he has never seen a dollar from a music-licensing company.

    "Only the artists at the top level are the ones that receive the royalties," Cena said. "It's not a really fair system if you really think about it."

    "...You can't blame BMI for doing what is their right to do, but these days nobody wants to pay for anything," he said. "We need a better system."}

    While I agree that those who create also own, the money owed for merely singing someone's song should be very little. Notice how BMI went where the money is, in typical shakedown fashion. The system is badly flawed and way too expensive. Popularity is key to the music industry so it's a fine line between wanting one's music distributed and then charging large sums of money after the fact.

    RW, you can't truly believe that you've not "borrowed" other's content on your website from time to time? That's something that's done often by many, and it's unfair to simply target businesses that are worth the effort of suing. Are we all just playing Russian roulette with the copyright laws?

    Some new system needs to reveal itself. Something proactive from the industry itself or, sure enough, the government will get involved and do it on behalf of the masses or the industry - neither being very cooperative imo. How to collect on usage while not charging more than pocket change per use? That's the question.

  2. I believe the artists sign an agreement with BMI to act on their behalf, collecting royalties, etc.

  3. Bob,

    You should be careful to be throwing stones here:

    "I consider it coercive and the utmost in arrogance for someone other than the creators of songs to think they should set the rules for use of songs over the rules set by the creators of the song."

    Rumor has it that you have been seen hanging out with a coercive, arrogant racist jazzman:

    I am guessing that when you say he "really knows his jazz history. He introduces all his songs with history that you are unlikely to have heard before", that you mean history about creations of other artists from the past, and that he is about to "set the rules under which the songs should be played", correct? I am not sure why your buddy is so wonderful and the guys you don't know are such scumbags; I cannot see a difference.

    In addition, the comment above by Brutus, that "you can't truly believe that you've not 'borrowed' other's content on your website from time to time" is certainly true, as you quote others extensively. What is the difference between quoting another thinker and playing a cover song? Consider what you said above, Robert, when it is rewritten like this:

    "It doesn't seem complicated to me. The quotes are the creations of Ludwig von Mises and Murray Rothbard. How does it make sense for anyone other than the creators of the quotes to set the rules under which the quotes should be used?"

  4. What exactly does Jimmy buffet own? The chord sequence? The melody? The words? The percussion groove? If any of the constituent parts are missing or altered,does he still own it? How different from the original recordings does a performance have to be to not be actionable? Are there any non-arbitrary definitions of what the song "is"? Suppose I sing Stairway to Heaven in Latin in a different key and at double the tempo, would that be the same song? Why? The precise patterns of air pressure waves would be completely different from what comes out of your speakers when you play your CD. What exactly is it that these people are claiming to own?

    1. Some of these kinds of issues were addressed in the litigation initiated by musicians against "sampling" by Producers/DJs involved in rap music in the late 80s early 90s. One effect was that producers/DJs would have studio musicians replay a bassline and use that instead of using the actual snippet from a song. Instead of direct attribution, the song/music writing credits would say something like "contains an interpolation of the bassline from Parliament Funkadelic's "Theme From the Black Hole", which probably cost less than the snippet. All that being said, the "ownership" issues are still debatable and can be fought in court at great expense to all. I still remember Vanilla Ice arguing on TV that his song "Ice Ice Baby" was different from Queen's "Under Pressure" because the beat was "ding, ding, ding, da, da, ding" instead of "ding, ding, da, da, ding, ding, ding" or something like that. He sounded ridiculous.

  5. What is it about the songs that are proprietary? Is it the lyrics, or the combination of note? If I were to change one lyric to a song, would it be considered stealing? If I were to play the song with a different instrument, would it then be considered original? No ideas are created in a vacuum. They are all inspired in some way by the ideas of others. Where do you draw the line between inspiration and theft RW? I see no clear distinction.

  6. As a former musical artist I would send in my set list to SESAC after a performance and would receive royalties for the performance of my work, by me, at a SESAC licensed facility (the bar). It would only be $20 or so, but it was enough to buy guitar strings for the next show. The bar pays a licensing fee, and part of that money eventually made its way back to me.

    As for this guy: "...One Tampa singer and songwriter, John Cena, has been in the industry for more than 30 years, but said he has never seen a dollar from a music-licensing company." It's his own fault for not being proactive.

  7. While I totally agree with you, Robert, I do think going after these establishments is stupid. The free advertisement of the songs probably sells a lot more of the musicians' products than they receive from the royalties. Not that BMI would care about that....

    1. I agree with this thought. I have heard covers, looked up the originals and bought cds of the original artists. But artists are unique and don't have influences nor build on improvements and creations that came before ...sarcasm. This is the problem with IP, that things are created from "scratch" with no prior knowledge or discovery to lay the foundation.

  8. My youngest son plays the trumpet and he's required to do a Christmas solo each year for his homeschool band. Last year's solo was "Happy Holidays". I PURCHASED a backtrack online, which roughly recreated the original backtrack, sans melody, from Andy William's version. My oldest son, going off to Berklee College of Music this fall, took the PURCHASED backtrack and changed several features using his music software - adding and subtracting things as he went to help the backtrack fit the trumpet solo. He then wrote a melody for the trumpet, matching some of the Andy Williams version but adding and subtracting to that as well.

    My son gave an awesome performance, which I videotaped and uploaded to YouTube. Shortly after uploading, I was informed that copyrighted content was detected, but that the claimant was allowing me to keep the video up anyway. Even after purchasing a backtrack, making several changes to both the backtrack and melody, a claim had been staked for parts of a song that was composed in 1941 by a man who has been dead since 1989 (Irving Berlin lived to age 101). The Andy Williams version was recorded in 1963.

    There must be self-imposed limitations to copyright, imo. Again, I don't know what or how, but it's clear that something needs to be done to facilitate a cooperative exchange between artist and purchaser of the art. They need each other.

    1. Brutus - what you fail to understand is that the organizations in the "music industry" do not want you or I or anyone else to be able to make culture, to be able to remix bits and come up with something new and unique unless they can strangle the shit out of it and wring every penny out of it for themselves. By strangling your attempts to express yourself they are trying to dominate the cultural landscape and charge everyone for it.

      By dominating the creation and expression of culture, they control the language and prevent anyone from straying too far from the herd. You are far too hard to "milk" if you are out there on the tips my friend.

      I have seen these buttheads try to charge people for playing Creative Commons licensed music. Screw 'em.

  9. Several writers are being very lawyerly about the minutiae of song changes. But one thing is certain. If they were receiving the royalties for "Margaritaville", I am sure they would know plagiarism when they heard it.

    1. Any chance their afection for the cash flow might inspire their ear to hear a false positive on this oh so rigorous test of yours?

    2. It's not irrelevant, it's the heart of the IP debate. With physical property there are definite quantitative ways to assess ownership of resources. With IP the standards of ownership are completely arbitrary.

    3. "With physical property there are definite quantitative ways to assess ownership of resources."

      You mean like:

      "That's mine!"

      "No it's not, it's mine!"

      "No, it's mine!"

      "It's not! It's mine!"

      There's nothing inherent about tangible property that makes it "ownable". We make rules that give the "right" to own things, but figuring out to whom something belongs can often be arbitrary and difficult to assess.

  10. When someone says "I own this land." the obvious follow-up question is "Where is the boundary of your land?" No one would ever be accussed of being finicky he asked such a question and any property owner who could not give a precise and unambiguous answer would hurt his chances at enforcing his claim. So what exactly are they claiming to own? I am a musician. When I write a song, it certainly feels like it is mine, but I couldn't tell you what exactly it is I own. I can point to specific moments in my music that are unique as far as I know, but if that is going to be the standard, the vast majority of popular music will struggle to meet it.

  11. What if the music was from an over the air radio broadcast?

  12. What if a contributor to this web site repeated something he had heard.

  13. ATTENTION: All IP Commies: Address these logically or STFU.

    Agreed though that copyright laws need revisited, and/or need to be universally (as opposed to in the case of this post, selectively) enforced.

    (Although the selective enforcement of laws is indicative of the pervasive rot of the empire, but I digress)...

  14. Could Kareem Abdul Hagar have patented the slam dunk? Its a process/technique no different from making scotch or writing software. Could be have demanded a dime for every slam dunk performed by other athletes after he invented it? (maybe he didn't invent it, but whoever did, the question stands) How much would someone after to alter or improve kareem's original dunk to make it his own? Simply being the product of your mind is not enough to make something your property.