Edited Transcript of a Question-and-Answer
Session between Mr. Robert Pauley, District Manager for the St. Louis Office
of ASCAP, and a gathering of bluegrass festival promoters, 21 April 1990. Posted with the kind permission of Michael Allen, whose work this is.
Selected Topics Covered in Discussion
-
Introduction
-
Summary
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Beginning of Transcript
-
Licensing Possibilities
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ASCAP's Legal Authority
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The Special Case of "Grassroots" Music
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Problems with Payment for Songwriters
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Royalty Exemptions
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Investigations and Prosecution
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Other Performing Rights Societies
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Alleged Intimidation by ASCAP
Please
note that this dialogue took place in 1990, and as regulations change over
time, the information within is not always up-to-date.
Introduction
by Michael Allen
The
American Society of Composers, Authors and Publishers (ASCAP) is one of two
major performing rights licensing organizations in the U.S., and as such its
job is to license (collect fees from) the promoters of live music events and
distribute that money (minus expenses) to the song writers in the form of
royalty checks. ASCAP's 1985 revenues were $245 million, of which about $44
million went for expenses. In contrast, the other major performing rights
organization, BMI, had 1985 revenues that were roughly half that of ASCAP,
$136 million.
Since
the passage of the 1976 Copyright Act, ASCAP has been expanding its licensing
efforts to test its legal limits as compared to the 1909 Act which it superseded.
One type of event that has come under increased scrutiny in the past few
years is the bluegrass festival. As you will read in the transcript that
follows, most bluegrass festivals in the midwest are very low-budget affairs,
so much so that the performing rights organizations were content just to
let them slip by, until recently. Then promoters began receiving form letters
from ASCAP that they considered threatening, and bills for per-day flat fees
that were clearly outrageous. (One example is the festival in Council Bluffs,
IA, which was asked to pay a $600 license fee for an event that grosses $6000
in $12 weekend passes; as a result, that festival will not be held this
year.) In addition, non-profit musical events with no admission charges
such as jam sessions were being asked to buy a license, which effectively
puts an end to oral transmission of folk culture at community evens done
simply for the love of the music.
Appealing
to ASCAP got no response, or fruitless mechanical responses obscured in
legalese and devoid of any understanding of bluegrass festivals, or worse,
wrong and inconsistent answers. And the supreme irony is that bluegrass
writers are not getting paid the royalties that ASCAP has collected supposedly
on their behalf.
It was
in this atmosphere of mistrust and anger that Larry Ballenger was approached
by ASCAP field representative Ray Gonzalez at a jam session and meeting
of the Kansas City Area Bluegrass Music Club on 14 April 1990. What transpired
is remarked in the transcript. Larry invited Ray to attend a meeting of
bluegrass promoters in Columbia, MO, the following Saturday; in his stead,
his boss Mr. Robert Pauley attended.
What
this transcript does not convey is the general feeling of the meeting, at
least as I saw it. Although they started out nervous and testy, by the end
of the meeting I overheard comments from promoters such as "well, I can live
with that," and, "if you can't beat 'em, join 'em." And at the end of the
meeting, Bob met with promoters one-on-one and discussed their individual
festivals; one promoter got his rate reduced from $460 to $79 for a five-day
festival. Bob Pauley I think did a brave thing by coming into that meeting,
and the increased understanding and better attitude of the promoters present
is ample proof that this transcript should be distributed to others who are
struggling to understand how and why to deal with ASCAP. In particular, I
think, bluegrass festival promoters across the country need to be made aware
of, and insist on being charged at, the advantageous Per Concert and Blanket
rates, as we found out is being done now in Missouri.
However,
as one would expect from such a conservative and litigious bureaucracy, ASCAP
didn't see it that way. As a courtesy to Bob I sent a copy of this transcript
to him to review for accuracy, some of his corrections are included in
the text. He sent it on to his boss, Mr. Patrick Collins, in Cleveland,
OH, who today denied permission for the transcript to be published or distributed
in any form. according to Bob, Mr. Collins' main objection was that parts
of the transcript taken out of context seem to emphasize ways of getting
"out" of paying ASCAP rather than just giving reasons for and urging compliance.
He felt that existing pamphlets and form letters were better vehicles for
explaining ASCAP policy to bluegrass promoters. I pointed out to Bob that,
legally speaking, I do not require permission to publish and distribute
his comments, since they were made at an open meeting and he was aware that
they were being taped. (This information comes from the general counsel
of the Kansas Association of Broadcasters, who runs across this problem
frequently.) Bob said something about "I know it's too late to close the
barn door now," and mentioned that he had been instructed in the future
to not allow tape recording of his comments in such meetings, and if tape
recorders are present, to restrict his comments to prepared responses to
questions submitted in advance.
I therefore
note that this transcript, although it was checked for accuracy by Bob Pauley,
is being distributed legally without his consent. That makes this document
especially important, because it may be one of the few "straight-answers-to-direct-questions"
kind of exchanges that will ever be held with anyone at this level in the
ASCAP organization. Secondly, what is this transcript that ASCAP finds so
damning? What is it that hits too close to home in terms of giving options
to festival promoters?
Summary
Bob
mentions several perfectly legal ways of reducing the licensing fee:
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Use a Blanket or Per Concert rate instead of the Festival rate. This rate
depends on the admission charge per concert, not the camping fee or total
weekend admission charge. In response to a question posed after the discussion,
Bob pointed out that one could raise the camping fee and lower the concert
admission charge to get a better rate on the schedules. (Of course, there
are limits to how much adjusting they'll tolerate!)
-
License 100 or more concerts at one time through an association of promoters
for a total 25% discount.
-
Organize promoters and negotiate with ASCAP for a better rate structure
specifically for bluegrass festivals.
He describes
how and when one is exempt from a licensing fee:
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Gospel shows at festivals that are recognizably a worship service.
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Events which have no direct or indirect admission or commercial purpose.
ASCAP is naturally pretty aggressive in defining indirect; Bob specifically
calls hat-passing an indirect admission charge, whereas his field rep Ray
agreed with Larry just the week before at the KCABMC meeting that it was not,
and some entertainment lawyers I have surveyed say it's pretty shaky claim
in connection with a clearly non-commercial purpose. Of course, who among
us wants to test this by being the first one sued?
-
Concerts licensed under a Per Concert agreement for which it is proven with
a playlist that no ASCAP songs were played. Actually, all this gets you is
a refund or credit on money you should already have paid. As pointed out,
trying to convince ASCAP ahead of time that you don't have to pay because
none of their music will be played is dangerous: it marks you for surprise
visits and they might try to trip you up on the jam session issue.
And he suggests some ways that we could ensure more money gets to bluegrass
writers:
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Produce a chart of the most-played songs on bluegrass radio shows (Bluegrass
Unlimited magazine has started one called the "Bluegrass Top 30" in their
May issue).
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Determine who wrote the songs played at your festival, contact them in advance
and send them some royalty money directly (thus bypassing ASCAP and BMI while
still meeting your responsibilities under the Copyright Act), or
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Start a licensing organization specifically devoted to collecting from festivals
and distributing to bluegrass artists.
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Join ASCAP as a writer-member, and start asking questions of the people
who control distribution.
What
needs to be done immediately is alerting bluegrass festival promoters of
the more advantageous Per Concert and Blanket rates (a sample rate schedule
is attached). ASCAP will not do this for us. The festival in Council Bluffs,
IA, was still being asked to pay the Festival rate of $600 as late as January,
although Bob told me that the memo from headquarters defining concerts and
festivals has been out for about a year now (and although the field rep who
reviewed the account recommended a reduced rate; the bill came from the district
manager in Minneapolis). (By the way, one might well ask how I know so darn
much about this festival in Iowa: that's a festival that my family's bluegrass
band promoted, so my ma has all the facts and figures.) Bob said that some
parts of the concert definition don't exactly fit a bluegrass festival (advance
tickets, defined seating), but that it's a better match than the festival
definition, for the reasons mentioned in the transcript. Promoters need to
let 'em know we know about the other rate and insist on it!
One other tendency I noted with some dismay after the meeting was a sense
that, from the promoters' standpoint, things had been settled. There were
comments like, "let's get this rate business first, and we can worry about
distribution later." However, I'm afraid that once ASCAP ceases to be a major
pocketbook issue to promoters, much of their motivation to correct the collection/distribution
inequalities will evaporate. We can't let up on them to distribute more royalties
to bluegrass writers. It's a better deal, but it still ain't a fair deal.
I should probably add that I have edited and prepared this transcript as
what I perceive to be part of my duties as a bluegrass producer for KANU-FM,
however, the opinions expressed in no way reflect those of the station or
of the University of Kansas. Thanks for your past attention and continued
activism on this issue.
Michael L. Allen
Lawrence, KS
On to the transcript!
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