Musicians sue South Beach (Nightclub sued for playing music)

Attorneys representing singer-songwriters Madonna and Lenny Kravitz are suing the owner of an Amarillo nightclub, alleging the club infringed on their federal copyrights by playing their songs without authorization.

The copyright infringement suit was filed in federal court March 4 against Scott Williams Elkins and Pickerington Bicycle Club, which operates South Beach, 2600 Linda Circle. The suit says the club is owned by Elkins.

The Globe-News was unable to reach South Beach representatives for comment on the suit Tuesday.

According to the suit, the various plaintiffs secured exclusive rights and privileges to copyrights for various songs.

The suit claims the club infringed on the plaintiffs' copyrights by giving public performances of copyrighted songs on the club premises.

The suit claims the defendants have not sought or obtained a license agreement from the plaintiffs or the American Society of Composers, Authors and Publishers, known as ASCAP, a performing rights licensing organization that the plaintiffs belong to.

Plaintiffs claim ASCAP representatives contacted the defendants and sent numerous letters informing them of their liability under federal copyright law and that the defendants have continued to perform copyrighted music without permission during business hours.

Songs named in the lawsuit include "Justify My Love," written by Madonna Ciccone and Lenny Kravitz; "Erotica," written by Madonna and Shep Pettibone; "Nasty," written by James Harris III and Terry Lewis; and "Get the Party Started," written by Linda Perry.

Plaintiffs are seeking between $750 and $30,000 in damages for each of the five counts of copyright infringement named in the suit.

The suit also asks that the club be barred and permanently restrained from publicly performing the songs named in the suit.

Your disturbing anti-capitalist rant notwithstanding, truly talented artists could not achieve millions in sales without the record companies. There may be Todd Rundgren or Janis Ian who make a living at it, but even they are only selling about 3,000 CDs a year.

Now, I totally agree with you here. People who think the internet is going to replace typical distribution and production chanels are not living in reality. I have been in this argument on "Napster" threads one too many times.

People who think the internet is going to replace typical distribution...

Hmmm, you might THINK an outfit like IUMA would go out and compete with ASCAP. Use the google and find out why that isn't happening. It isn't just an insult to say ASCAP is a racket. It IS literally a racket, and it works like one.

If music underwent a price deflation like those common in high tech (and in some countries it already has) then unprotected downloads would be economically viable.

I understand your questioning. Let me put it in a different perspective that will hopefully help clarify.

Say I'm a songwriter. You run a dance club. You hear my song and think it's one of those great songs that will bring in customers night after night. Knowing that, you contact me to get permission to use the song. I realize what an asset it will be to your business, so I charge you a price commensurate with the value to your business, say $5000. You agree on the price and we have a deal.

Ideally, that's the way it would work. But you and I both know that in the real world, with thousands of songs, thousands of clubs, and thousands of songwriters, a direct deal like that just isn't feasible.

Knowing that, I hire an agent to take care of that licensing for me. I may not get a check from you for $5000 as in the first example, but the agent will collect some money from you and every other business who plays my song. As long as you keep playing my song, I keep making the money.

So, instead of a direct deal where you write me a check for $5000, you pay me through my agent on the installment plan. ASCAP serves as the agent, the intermediary doing the deals, for songwriters.

Thanks. It's been an interesting exercise for me, and I'm still not completely comfortable that I've got my arms around the problem.

I've generally stayed off the napster-type threads because I don't really have a dog in this fight. I listen to some music on the radio, but I don't buy many CD's and I don't have time to download from the net (it would cut into my FR time too much). Some of my friends, though, are heavily into both and it's a topic of much conversation.

But I am interested in the subject on a more theoretical level. There is something happening here that will cause ripples throughout many other types of markets and it's goint to be fascinating to watch.

To be perfectly honest, I have neither an interst nor a background in copyright as it pertains to literature/publishing. FR was sued and settle with two publishers over copyright violations and that's why we now excerpt a lot more of what's posted. I don't think that's unreasonable.

Did painters ever have the leverage to charge for their art by how many people saw the painting?

As you know, most painters didn't live to see the value of their works realized, Picasso being a notable exception. However, it's quite obvious that the value of a painting is built into the purchase price when a Van Gogh is selling for $50,000,000.

The value of a musical composition is not built into the purchase price when you pay $17 for a CD with 10 songs on it. That's why your purchase of that CD entitles you to listen to it, but performing it publically is a different matter and why the artist is entitled to more revenue from a public performance of their work.

I'm sure if you wanted to buy a CD for $2,000,000 and play it publically, there are many songwriters who are eagerly awaiting your call.

If I have unfairly characterized your views or your character, I apologize.

Apology accepted. Thank yoy.

I know we agree on much.

Yes, we do.

It isn't just an insult to say ASCAP is a racket. It IS literally a racket, and it works like one.

I'm not sure what you mean by a racket. From your post you seem to imply they shut out any competition, like a monopoly. If that's the case, you're dead wrong. There are four major PROs (performance rights organizations) in the United States, and nearly a hundred more across the globe.

When I said a rack, I mean they operate like a racket. They have been successfully sued for racketeering. They masquerade as a legitimate business, but so do trash haulers in New Jersey. What does what the opinions of other people mean? It means they, too, think ASCAP is a racket. It is possile to license music and not have it be a racket. Let's take, for example, Harry Fox Agency. While you might quibble with their expense ratio, at least they have moderate cost licenses (not nearly as cheap as Japan, but OK). They also enable low-volume users to transact licenses on an e-commerce site. This is in sharp contrast with those widespread horror stories about ASCAP. It IS possible to do licensing right, and ASCAP willfully does not reform their ways. This is because their enforcement mechanism is, literally, a racket.

You also fail to address what I said about blanket licenses. If there was the equivalent of the statutory mechanical rate for, say, discos, and ASCAP was limited to collecting, say, treble damages from non-compliers, ASCAP would be de-fanged. No more racket, no more horror stories.

[ASCAP] have been successfully sued for racketeering.

I'm still waiting to see that case citation.

What does what the opinions of other people mean? It means they, too, think ASCAP is a racket.

And there are people who think the earth is flat. So what?They're no less wrong.

Let's take, for example, Harry Fox Agency. While you might quibble with their expense ratio, at least they have moderate cost licenses

Do you know what the Harry Fox Agency does? Do you know the difference between their business and ASCAP's business? What e-commerce site is going to need a license from HFA? HFA handles mechanical royalties, which are statutorily determined by Congress. HFA and ASCAP are not similar in any way.

"...don't recall signing that,"

You don't have to sign it. It's a copyright reservation of rights statement. And the Uniform Commercial Code says you agree to that when you buy copyrighted intellectual property.

To really cut to the chase, forget about the RIAA. It isn't even part of this issue. Simply because you can't tell the difference between the disc and the contents of the disc doesn't change the law or the rights of those who create music.

Well, assuming the "artist" is also the songwriter (i.e. the copyright owner represented by ASCAP et al), he would pay ASCAP and BMI just five percent. He would collect 95% of his allocation. If he were affiliated with SESAC, his share would be 50%.

Suppose I'm an ASCAP member and I write a song which is widely played in bars, dance clubs, and other venues but which--because I don't give all my money to record companies for "promotional expenses"--gets zero radio airplay. How much will I get from ASCAP? I might not mind ASCAP so much if people who perform music publically were required to submit a set list (or received a discount for doing so) and the money they paid to ASCAP were allocated based on that set list. As it is, though, how much money one makes off ASCAP royalties is a function of how many radio stations one's "promoters" have paid for, not how much the public actually demands the song in public.

"stereo system...extortion fee"

Establishments using copyrighted music to enhance the establishment's atmosphere are rightfully required to pay the composers and publishers of the music for the use of their intellectual property.

God bless the U.S.A.

I'm not sure what kind of answer you're looking for. If you're looking for a calculated amount you'd expect to see on a check from ASCAP, I'm sorry, there's no way I can tell you that.

If you're saying that you won't get paid for your music being performed in clubs, you're wrong. If you think you're not being paid fairly for those performances, ASCAP has a review and appeals process you can invoke to get what you think is a fair amount.

What's left is your complaint that you're not getting paid for the non-performance of your song on radio, which is a result of your decision to shun radio. And you're blaming that on ASCAP?

I read somewhere (forget exactly where) that ASCAP bases royalty payouts on radio airplay; if a song receives 1% of radio airplay, it's assumed to get 1% of nightclub play. Is this in error? From what I've read, clubs and show sponsors in Europe are supposed to submit set lists to their countries' ASCAP equivalents, but ones in the U.S. do not.

Yes I know what HFA does.

As ususal you are spewing smoke to obscure the issue. HFA sells low-volume licenses via HFA's e-commerce site. This makes it easy and cheap to buy licenses.

If ASCAP enabled clubs to buy one-song licenses through a similar mechanism, the ASCAP blanket license and the extortionate enforcement practices would go away.

You know how this stuff works and you know it operates like a mafia.

From what I've read, clubs and show sponsors in Europe are supposed to submit set lists to their countries' ASCAP equivalents, but ones in the U.S. do not.

That is because you have put your finger right on the ASCAP blanket license racket.

If clubs could document ASCAP and non-ASCAP content proportions, the blanket license, and ASCAP's enforcement racket, would go away.

Obscene expense ratios and uncertain payouts to artists based on a corrupt (the current system of "promoters" is just payola retreaded - another instance of music industry racketeering) system.

I have nothing against collecting royalties for intellectual property. But the current ASCAP system makes it impossible for clubs to opt out. ASCAP will always play "gotcha" with them.

This is why ASCAP contractors should be outed at treated like the stool pidgeons they are.

tdadams may claim all the ASCAP horror stories on the Web are all fabrications by IP thieves, but I would just invite anyone who wants to know ASCAP's true nature to google them and read the facts that are presented about ASCAP and make up your own mind.

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