Performing Rights Organizations - Why Are They Pickin' On Us 'Little Guy' Venues? - by Annette Warner

I have been getting a number of emails from coffee shop owners wondering how to deal with BMI and ASCAP and SESAC, and most of these quaint, small venues want to know; "Why are these people harassing my venue? I advertise local original music only, but I can't be here 24/7. Isn't that enough? How can they benefit us while they are blasting holes in our pockets? What do we do? Should I stop music altogether? I can't afford to pay these fee's - My coffee shop is a financial burden as it is! Isn't it the responsibility of the musician to make sure they don't play someone else's music?" And on and on.....

Here's the scoop on your java 'n' juke ....

If absolutely no performer, ever, plays a registered work in your venue, then P.R.O.'s cannot take money from you. As for the threat of fines etc., they'd truly have to prove you violated copyright by permitting a performer to perform protected material :) Be careful. I have been told by Jerry Bailey, Media Relations Representative of BMI, that once their reps start visiting a business, they are reasonably certain the venue is performing protected material. "The thing is...BMI is actually incurring expense to send in our representatives and verify this information....you won't even know they have been there......at this point we should be fairly suspicious that a lawsuit is lurking around the corner" Jerry further stated, "BMI is looking to recoup their losses and time involving this venue from letter #1"  And I have to say this; it's dangerous to feel safe with even 'public domain' or what many refer to as "traditional' tunes. Many of them have been rearranged and re-registered. I'm going to use a fellow songwriter's stated example of this, Don Deleumont; "'Cold Rain & Snow' is a traditional song and if I was to play it the way the Grateful Dead played it, that song is registered with a P.R.O. as "Cold Rain & Snow" - arrangement by The Grateful Dead."

Paying the assessed fee's essentially protects the venue from copyright infringement which can be much more costly if one protected tune sneaks in by 'accident' on a night someone from one of these organizations happens to be there.  Being licensed under this "negotiated" fee permits you access to their entire repertoire of covered music.  And let's face it, no matter how original someone is...most performers cannot resist doing a favorite cover they do well.

Technically, anyone playing in your venue whose music is registered with the P.R.O.'s is considered to be performing licensed music. But it seems the common condition among these organizations, is that you don't have to pay the fee's if you receive personal permission from everyone involved to perform anyone's music/work. I can't imagine being able to accomplish that to it's worth. Taking into consideration as well, that even though a songwriter may be performing their own works...they may have a publisher that is entitled to a piece of the action. And publishers can and do sue for violation of copyright. They have the high falutin' attorneys that the meager income of a typical struggling songwriter can't touch, and most own as much as 50% of the published works...so can you blame them? In my opinion...to be honest, no.

According to Bailey, "Fee's are decided upon based on the fire code occupancy/venue capacity regardless of what your TRUE capacity averages. Also figured into the fee schedule is the intensity of the music use. We'll ask questions such as: Are you playing CD's?  Do you have a juke box?  Are you hosting music 7 nights a week or 2 or only one night a month?, etc."

My advice?  Pay them and advertise the heck out of the fact that all music is welcome and book some good cover artists to pack the place on a few chosen occasions, charge a door fee and recoup your annual fee's  :) If you are a venue that doesn't pull big crowds, or receive profits; take donations, and sell local art for a percentage to pay these fee's every year. You can sell local CD's for a percentage of the take as well to help offset these fee's. Then, my friend, you can play all you want with cultural experiences. To not, from what I gather, it seems life as a coffee house style venue owner is akin to being in the witness protection program. Perpetually waiting on the slicker-than-snot music mobsters to catch up with you. What kind of way to live is that?

Now, let's not dwell on the situation's negative. If you pay - there is a return for your money. You get to not have to worry about who plays what on any night of the week. 

I confess that I'm a mixed bag when it comes to the 'venues and musicians - what's fair?' deal. I see it from both sides and in between. So each party is going to wish I hadn't said something...but the bottom line is  it costs money to play music. Anyway you want to look at it. Everyone needs to soak it up in this situation. Coffee shops are historically famous for their songwriting support. In an age where we are coming back around to appreciate them as live music venues again - we want them to survive.  They are the virtual breeding ground for performing songwriters. And trust me...if it's made so they can't afford to host live music.....we're going to miss them.

In essence, P.R.O.'s are out to protect the songwriters, not vanquish the venues they play at. And they do try to soften the blow to a typical coffee shop's menial budget by offering legitimate savings on their otherwise arguably invasive fee's. You can save 10 -12% on these fee's by being a member of qualified state Restaurant and/or Beverage Associations, or by simply paying your annual fee's within the required time frame. Simply put, they are doing their jobs to make sure a songwriter's labors of love do not go unrewarded financially. And who can find anything wrong with that?

Performers:  Ask your venues if they are covered by either or all of the PRO's before planning your very first or even next gig in the venue and do your part to be fair to songwriter's, who have troubadoured their way up the ladder as you aspire to do. They deserve to get paid like you would want to get paid. Question those venues that encourage cover tunes rather than your original music if they are not licensed. Nobody has ever made it to the top without someone watching their back. :)

In truth, it really begins with the performer, but it ends with the venue in the eyes of the P.R.O.'s. Don't make it an "end" that shuts doors to a viable and much needed outlet for local and regional music. Just do what's right in your case. For some that may mean fixating your budget to absorb these fee's and be creative with a way to recoup them. It's just part of the business of music.  :)

This article is available for reprint after April 30th 2006. Just ask first. Contact awarner@coffeehousetour.com