The Royalty Free Zone

Creative people, who have been left out of the mainstream of the music industry, have the ability if not the responsibility, to make sweeping changes to the way music is propagated in this country. Inequities, which have been tolerated for years for efficiency reasons, no longer have the excuse due to the advent of new technologies. Licenses have limits. Owners can be trusted with their own property.

Royalties, in the music business, are generally a good thing. They let songwriters and publishers survive by providing a mechanism for payment in recognition of their efforts, time invested, and their ownership of intellectual property. When this property is used, performance rights organizations are empowered to act on behalf of the collective owners of such property to collect royalties for them. Especially when this property is used commercially this ownership needs to be recognized and payment made. It has been a good system with good intentions, but like all things large and unwieldy, it operates a two edged sword that cuts back against the artists and even against the expressed purpose of the organizations themselves. We have the power to change this for the better.

In the American music business infancy, founding member of ASCAP, Victor Herbert, brought a lawsuit against Shanley's Restaurant for refusing to pay royalties. The story goes that he was eating at Shanley's to music that he had written. Noticing how much the atmosphere was enhanced, how many people were there to eat in some part due to the music, he refused to pay for his meal until the restaurant paid a performance royalty for using his work. In 1914 ASCAP, the first American performance rights organization, was formed to address this issue and eventually prevailed in the supreme court. A new recognition for the rights of owners was established. They had the right to control how their intellectual property was used.

On ASCAP's web site, it makes a summary statement, "ASCAP is committed to nurturing music makers throughout their careers." Also the closing statement of its president in a letter from the same page says, "I am continually encouraged by the many new benefits and services we have to offer, and by our ongoing leadership role as the champion of the rights of creators." BMI, SESAC, and the Canadian SOCAN, all have similar lofty vision statements, but collectively they are driving out of business and depriving the beginners, the non-commercial users, the ordinary masses who operate in small ways, of the venues where they have traditionally had an audience.

Like big business, licensing agents for these agencies use computer word searches to find every use of music by anyone they can license. They then drop by with an assessment of what a business owner should pay for this use. This could be for a call waiting phone line, ambient recording in the office, or a live performance event.

Businesses that exist to provide a service the public knows it wants, like food in a restaurant, beer in a bar, or the like, can get by on the sales of product, but it often costs them something to make a commitment to the arts. So long as they play music that is popular, they keep patrons happy, and the money flowing. To allow original music is risky at the very least. To feature original music that is unknown, in a business with minimal profit margins is to flirt with disaster. Such businesses ought to be subsidized by performance rights organizations, not penalized. They need to exist in a royalty free zone.

I have seen several such businesses close or change modus operandi because they could not pay such royalties. Being close to the principals involved allows me to state without question that a license obligation was the single factor that pushed them over the edge and closed the venue to struggling singer/songwriters. The industry breeding grounds are not served by restricting access of the creators to their audience.

A royalty free zone could be created which leaves the control up to the creator. Essentially, it would allow a business, who would make a commitment to original artists and singer/songwriters, to expose music in co-operation with the owners of such material without additional charges from an agency. It is my contention that if an owner of intellectual property chooses to use the property independently of his or her performance rights organization, they should be allowed to do so. They are the best judges of what is in their best interests. Preserving this beginning level of performance spaces is in all of our best interests.

Before the dawn of computers, this type of performance opportunity existed but was simply passed over in the interest of efficiency. They were harder to find out about, more transient in nature than well established businesses, and contained so few licensable works that it wasn't worth going after for the performance rights organizations. Indeed most of the works performed in these places are not licensed to these agencies anyway. As long as some works are registered with an agency however, these businesses do indeed legally owe a license fee.

The tragedy is that the fees collected are based on estimates, not real time tracking of material, and payouts are done according to the pool of money collected to the most popular artists unless a specific claim can be proved by the writer. This works great for the individual who is able and willing to do the job the agency was created to spare him or her, or who is popular enough not to worry about it, but the truth is that the fees collected successfully from these venues, even when the business is strong enough to endure them, usually does not get back to the artist they as supposed to be championing. The royalties are divided among artists of wealth and stature and preserves the industry's status quo.

The royalty free zone is a necessity to foster the creativity of writer/performers and to stop the unfair subsidy to the rich by the poor. While I wish all people were honest enough to simply make the right decisions to leave the little guy alone, I am a realist. I am therefore proposing the following. I am willing to set up a royalty free commitment list, so we who foster the arts can use the power of collective bargaining to make our case. It will consist of two parts.

The first is a list of clubs, tea or coffee houses, artist collectives or venues who make a commitment to only allow performances by signatories to the artist section of the list, who in turn will certify that all performances done in these venues will be their own work. This does not mean that they have to treat the list as an exclusive booking directory, but it does mean that the venue owners are aware of the issues for the artists they book and will expand the artist list by recruiting everyone they would like to book.

Because I will maintain a central data base, a venue will never be short of entertainment that is seminal to the arts and fosters creativity and new work. They will never wonder if the act is going to violate the agreement and play a cover song that makes them liable for performance rights organization license fees.

The second section obviously is a list of artists who commit to performing only works they fully own, and who are requesting the performance rights organizations to leave the signatory venues alone, when they perform in these venues. It recognizes a royalty free zone.

I am, at the time of posting this blog, making a commitment to have the contracts constructed and to found the list. I anticipate that we'll have legal battles over it so we'll establish a new organization to be non- profit and we'll need those interested in supporting us financially and as activists. I currently have the support of several artists and activists in the Lansing MI area and we meet at Magdalena's Tea House, a performance space facing this dilemma at the moment.

If I were in charge of a performance rights organization, I'd see opportunity here to help fulfill their mandate, but change is usually unwelcome, especially when control is lost. We do welcome dialogue. Here's to the future of all of you creators who contribute to the unrecognized fringe of our culture. We are legion. It's time to stand and be counted.