Popular open mic has to pay $2k for licensing or shut down

Like many performers, singer and songwriter Noah McGrath only plays his own material at the open mic. But because many choose to perform cover songs, ASCAP requires that the venue purchase a blanket license. The two women chatting behind him are Joanne Johnson and Pam Terpening of Saugerties. (photo by Samantha Moranville)

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.)

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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.”

 

There are 11 comments

  1. Derek

    To be honest, the fee seems pretty reasonable. $600/year for an open mic program that probably DOES increase net revenue >$600/year.

    If there’s punitive fees in that $1800 number, maybe there’s a way to convince ASCAP to waive that aspect of it, but it *could* just be “we’ve found you’ve been doing this for three years, at $600/year”.

  2. Pati Nigro

    I think the fee is ridiculous; that means every open mic in the country would be illegal and it is a venue that will disappear. Whose job would be to go to every open mike and bust them ?? No one is making money off the music; no cover, and the musicians do it for free so how is that an infringement? I am disgusted with how ridiculous laws infringe on freedom and creativity. No one is getting rich off of this and it would be a loss to the community who gather for something enjoyable and relaxing and the musicians who get the opportunity to play. Would it be an infringement to also play on the streets or in someone’s home?? ASCAP is being greedy cause they want to exploit and profit.

  3. Derek

    Pati: the reason a business DOES an open mic is because it brings additional patrons into the coffee-house/book-store/whatever. Those additional patrons buy things, which the establishment makes money on. Money it wouldn’t have made if the open mic night hadn’t brought those patrons into the shop in the first place. In other words, that revenue is directly tied to the use of the ASCAP-licensed content.

    The people who wrote those songs have a right to get paid when the material they worked hard on is used. And any business who can’t make $600 a year in increased revenue from open mic nights should be seriously reconsidering their business model.

  4. Julie

    $600 amounts to $50 a month. I am sure this man makes more than $50 a month from these open mics in other sales. The $1,800 is clearly punitive and he even admits that he ignored the letters. This is a consequence of his breaking the law. Sorry… Put out a jar so people can pay what they want for this entertainment, and I am sure you will be able to raise the money you need.

  5. Fred Perry

    I’m an ASCAP member and I think this is ridiculous and will eventually come back to bite ASCAP (and BMI and SESAC) in the ass! These type of nights are a community service and if (and that’s a big if) any money is ever made, it’s nothing compared to the effort that goes into it. It’s probably more hassle than it could ever be worth monetarily. This reminds me of a few years back when RIAA was going after kids who shared files and seeking ridiculous fines from them. What’s next, fees for giving someone a CD? I plan on writing letters to all 3 performing rights associations tomorrow. This is the law of unintended consequences. The only net result is that musicians will have less places to play. Come on! Isn’t the music business difficult enough already?

  6. Ron Toth

    If they do pay a fee ,is there someone in the audience keeping track of what cover songs are sung so the artist actually does get paid .If you sang stairway to heaven at an open mike ,will Led Zeppelin actually get the royaties? yeah,right .So what’s the point but to harrass people.Thing is if people are singing your song it’s helping to promote it ,therefore helping record sales increase.get it?

  7. Michael Solomon

    Ron, the money is a blanket license fee. That means its collected and put into a pot that goes to all artists. So, in effect, Led Zeppelin does see a share of this money. If it wasn’t for the success of artists like Led Zepplin, there wouldn’t be any money to divide.

    I agree with Fred that it may ridiculous to lose these open mics, what about Julie’s points?

  8. Jimmy Eppard

    It’s the artists who should pay the fees. If you’re going to perform covers in public you should have to obtain a compulsory license to do so.

    BTW, I’ve made a good percentage of my living doing just that for the last 38 years (& counting!)

  9. Byron

    They’ve targeted the upstate NY community; there are people paid (desperate and out of work people) to go around and try to rat on their community. This is sick and continues to be toxic for our community and our country. Another example of corporate takeover… little guys (the rest of us) are left to bleed/starve/wither while company CEOs and Chairpersons make their billion dollar bonuses for coming up with plans to take more of our money.

  10. Greg

    Byron, you sound paranoid and delusional. I agree with jimmy that maybe it would be fair for people playing covers to pay the fees. I think the Hudson Valley is being targeted because there is an inordinate amount of cover bands in the area. That alone is sad to me. Write your own songs and this ascap problem is solved. Venues like oasis in new paltz are making a killing on cover bands every week. Raking in thousands of dollars per night for a crappy cover band playing blues jams.
    This ASCAP money is used to pay artists that actually know how to write a song and have invested time and money into recording and releasing it. As a musician who’s lions share of revenue has come from bmi I think 600 per year is more than a fair price. That money is sent to small independent artists like myself.

  11. Aaron

    $600 per year equals $50. Our shop here does NOT profit over $50 due to people buying things expecting cover songs to be present….. That’s absurd. Even if that was the case, there are maybe 2 cover songs a month, if that. But our mic is being threatened, and yes, they will have spies come in and record to check. Wiretapping laws? I’m all for artists getting paid, but yeah this is unreasonable. This is an OPEN Mic. Open. Not covers night. Open for whatever the artist wants. NO ONE is going to these because they expect cover songs…

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