If a local musician sings a song at a free open mic night, should a group representing the artist who wrote the song be paid? Inquiring Mind Bookstore and Cafe owner Brian Donoghue doesn’t think so. He’s been going back and forth with the American Society of Composers, Authors and Publishers (ASCAP) for several years now over the popular Tuesday night open mic, which is free to attend.
It started with a letter from ASCAP demanding $1,800. (The average fee is around $600 per year, but Donoghue’s was higher, likely because the venue had already infringed.)
Donoghue says as a bookstore, the margins are too tight to pay either the infringement fine or the annual fee. If ASCAP pursues its claim, he’d have to shut down the open mic.
“My claim is basically that there’s no money being made, and we’re not charging anything,” said Donoghue. “Are you going to pick on a mom and pop open mic? It just seems really low.”
Vincent Candiloria, ASCAP’s executive vice-president of licensing, said that while it’s true many venues don’t charge admission, the music provides a draw that brings in customers who purchase other items — in this case books and coffee — and, in light of this, ASCAP’s fees are not unreasonable.
David vs. Goliath
The American Society of Composers, Authors and Publishers (ASCAP) was founded nearly 100 years ago to protect the publishing rights of Tin Pan Alley composers like Irving Berlin, Jerome Kern and John Philip Sousa. It has over 350,000 members and its catalog includes 8.5 million songs. ASCAP’s function is to monitor public performances of copyrighted music to ensure artists are compensated.
Extending this principle to all cases can sometimes create a scenario that makes ASCAP look like the bad guy. In 1996, the organization came under fire for attempting to make Girl Scouts pay a licensing fee for songs sung around the campfire. The organization later softened its stance, promising to return licensing fees to any Girl Scout group that had complied. A 2009 case involving ringtones had some critics wondering if ASCAP’s position would lead to consumers being charged a licensing fee for public performance if their ringtones played copyrighted material in public, but ASCAP denied that what it was seeking.
Hoping it would go away
At first, Donoghue ignored the letter. He received other letters and finally spoke to someone at ASCAP, who told them there was simply no way he could afford to pay the licensing fee. Most recently, Donoghue received a letter he said was more forceful in tone, with the promise of legal action on the horizon.
“I’ve been going along thinking this is just a fishing expedition, but who knows?” Donoghue said, adding that nowhere in their correspondence were there specific mentions of ASCAP-licensed songs being performed, or how Inquiring Mind even came into the picture.
“The kids (who perform) sometimes post their stuff on YouTube,” Donoghue said. “I assume that’s the way they found out…They could have someone in the office trolling YouTube.”
Paying the licensing fee, Candiloria said, guarantees venues like Inquiring Mind can continue hosting open mic nights with no interference from ASCAP.
He said venues usually comply when contacted.
“I have to say that most simply will take the license,” Candiloria said.
He continued: “If I owned the establishment, I know that I would be the one liable if there was any copyright infringement going on,” he said. “And I would say, ‘Okay, if I’m going to do an open mic here in order to attract customers, then I ought to look at what my obligations are, what my liabilities may be and I would probably acquire a license from ASCAP and perhaps other performing rights organizations like BMI so that I would simply not have to worry.”
For now, the open mics are still happening at Inquiring Mind, but the future is uncertain. Donoghue said he hopes ASCAP will relax their restrictions, especially for a place like Inquiring Mind that doesn’t include a cover charge and doesn’t pay its performers.
“It’s a positive thing for the community,” he said. “We don’t really make any money doing it. It’s a feel-good thing. It’s an opportunity for people to come in and enjoy themselves where no one is drinking and smoking. No money changes hands. What about free speech? The idea that you can’t stand up and sing a song with no licensing fee even though there’s no money being made is kind of bizarre to me.”
But Donoghue also concedes that there may be no recourse but to pay up or discontinue the open mics.
“I understand there’s case law on their side,” he said. “It’s been adjudicated, and it’s kind of scary. It feels a little David and Goliath to me.”
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