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Recent Articles By Noah W. Bailey

National Features

I don't know about you, but when I pay cover at Rubber Gloves, the Double Wide or the Granada, I would rather not see any of the money going to the Black-Eyed Peas. In a roundabout way, however, this is often exactly what happens.

Organizations such as ASCAP (The American Society of Composers, Authors and Publishers), BMI (Broadcast Music Inc.) and SESAC (Society of European Stage Authors & Composers) were founded in the first half of the 20th century to protect the rights of artists and songwriters, creating networks with which to collect royalties from radio, TV and live performances of copyrighted material. It was a system that worked beautifully in its time, but times have changed.

In recent decades, ASCAP and BMI have both become more aggressive in pursuing monetary compensation from music venues, restaurants and retail establishments that feature live or recorded music (though some satellite radio and jukebox services include the price of licensing in their fees). Whether it's a 20-piece band playing the swing hits of yesteryear in a dinner club or an 18-year-old playing Joni Mitchell songs in a coffeehouse corner, the organizations have shown they're perfectly willing to do whatever it takes to get the money that legally belongs to their artists, no matter how logical or illogical it may seem. ASCAP even went after summer camps and Scout organizations in the mid-'90s, claiming that fireside performances of "Puff the Magic Dragon," "One Tin Soldier" and the like entitled the publishers to royalty fees.

Of course, no one's arguing that a club that books a large number of cover bands shouldn't pay up (by all means, ASCAP, anything you can do to bring Firewater to its knees would be awesome). But Josh Baish, owner of Denton's Rubber Gloves, has had a hard time coming to terms with why his business should submit to the music publishing mafia.

"[ASCAP] was after me for $8,465 [in back fees]," says Baish. "After talking to their rep, he says, 'OK, well I'm gonna knock off all these interest payments' and this, that and the other...so pay me $500. It's just like he pulled that number out of his ass. OK, you're hitting me up for $8,000 and then, OK, now it's at $500. I mean, where is the scale, you know? You're sliding all over the place."

ASCAP has, however, offered to help Baish get right in the eyes of the law, offering him the chance to purchase a blanket license—to the tune of $1,700 a year. That doesn't include the amounts BMI and SESAC will undoubtedly come calling for if he pays their competitor. For a small venue such as Rubber Gloves, these fees could easily break the bank. And if he doesn't pay, the prospect of ASCAP suing him is very real—and did we mention they've never lost a case? (In such suits ASCAP often seeks fines of $30,000 per copyrighted song played—if the owner of the venue is unaware of the violation. If bands play a cover with the owner's permission, the fine skyrockets to $150,000 per song).

Make no mistake—Baish claims he's perfectly willing to pay artists. He just doesn't see how it's fair when a smaller venue such as Rubber Gloves is held to the same standard as a venue that books nothing but cover bands. "I try to be honest with them and go, 'Look, I can't tell people not to play covers.' I had this sign on the side of the stage, and that was laughed off...it's gonna happen. We don't hire cover bands, but if someone throws in a cover, then by all means, monitor it, write down the [original artist] and let me cut 'em a check."

Unfortunately, this is not how ASCAP operates. According to ASCAP representative Vincent Candilora, that method just isn't economically feasible. "You could submit a list of all the songs that have been performed," he says. "Now whenever anybody submits what they're performing, we're gonna have to, at some point, go in and audit, maybe at least once a year...The costs of auditing, the costs of receiving these set lists from all the establishments in the country that are using live music...that would have them paying fees higher than what the straight blanket license is.

"In principle I understand where they're coming from," he says. "But from an economic standpoint, it's just not a very good way to do it."

Instead, ASCAP takes those fees and uses a computer system to assign royalties to member artists on a scale based on the sampling of play lists from satellite, Internet and terrestrial radio. ASCAP members can also submit music-use reports of their own compositions, though the amount given out for such reports amounts to little more than $3 million a year, Candilora says. Basing how royalties are distributed on radio airplay is fine and dandy if you're, say, Fergie or Lee Greenwood. But what if you're Brent Best of Slobberbone and the Drams, who, outside of a brief romance with Lone Star 95.3 FM, has a presence on the airwaves best likened to a drop in the ocean?

Write Your Comment show comments (27)

  1. "In fact, it's a wonder anyone wants to open a club these days, given the hassles."

    Yeah, it's a wonder anyone would start a trucking business, what with the hassle of having to buy gas.

    It's not about covers. You read the entire thread, you should know that. But it's easier to slant the article a particular way.

    Comment by Andrew Hime — January 9, 2008 @ 03:32PM

  2. I feel ya, Brent. I had a song on the soundtrack to the movie "Colors" and I am a BMI-affiliated writer. The song was remixed by Dr. Dre and the album sold over 800,000 copies. If anyone wants to see my check from BMI for one (1) cent, I still have it.

    Comment by Jeff Liles — January 9, 2008 @ 05:13PM

  3. Club Dada, too, myself specifically, was literally stalked by the ASCAP guy. I couldn't come in to conduct normal business in off or on hours without the guy practically banging our door down. When he couldn't find me, he'd call the club more times than a spurned lover. They sent letters. He found my cell phone number.

    He wanted back fees, he wanted cash, he wanted money. Period. And God forbid a band show up and play a cover tune while ASCAP is around. God forbid a tribute show at Double Wide or Dada catches their attention. And didn't they shut down that one collective in Fort Worth?

    I cringe, knowing how much we paid just to get him to leave us alone (with a payment plan, no less), just thinking about venues that offer a jukebox or XM or Sirius and what they must go through. Looking over the paperwork, if you do have such things, the penalty is even higher.

    We struggle as it is here at Dada, opting to not book just the bands that bring in the drinkers, but rather doing our best to nurture the upstarts and book the best and more meaningful acts that Dallas, Denton, Ft Worth and the rest of the nation, sometimes world, has to offer. Punishing financial blows certainly don't help to keep the doors open on our dwindling and hard-working music venues in the metroplex. I simply cannot imagine what a hardship it must be for the smaller venues who I know must hurdle the same financial obstacles while maintaining the same booking philosophies. My heart goes out to them and I wish that my wallet was in a position to go out to them as well, given what a vital part of our community they are.

    Dealing with the ASCAP guy was tortuous at best. It's like dealing with the Mafia. Or, as my Joshie puts it, "It's like a member of the Mafia requesting you pay 'Oops! Insurance.' Then, bashing your shins in with a baseball bat while exclaiming, "Oops!""

    Take at look at what just happened in Austin because of ASCAP: http://www.kxan.com/Global/story.asp?S=7578467
    http://www.keyetv.com/content/news/topnews/story.aspx?content_id=a17f1be9-a751-4e8b-941a-7ba8a485a77f

    Comment by Amanda — January 9, 2008 @ 07:53PM

  4. If you mean Metrognome in FW, it was not brought down by ASCAP. It was issues with bringing a building up to code to remodel it. But that's just the man keeping music venues down too, right?

    Comment by Andrew Hime — January 9, 2008 @ 09:12PM

  5. thanks, noah.

    Comment by josh baish — January 10, 2008 @ 12:19AM

  6. Andrew Hime works for an insurance company. That's why he's a complete jerk about anything regarding d.i.y. or small businesses being bullied by big corporations. We shouldn't attack him, though. His well-known struggle booking bands at a coffee house on the square is a legendary contribution to the local music scene, as well as his amazing taste in shitty 90's bands. You're a relic, Hime. And a mean-spirited, misguided one with horrible taste in music at that. At least the other relics in Denton actually know what the fuck has transpired in art, culture etc. since 1996. Get a clue.

    Comment by Anon Nona — January 10, 2008 @ 12:25PM

  7. Did I read that right? Is it ASCAP or ASSHAT? Well, whatever, there's hardly a difference.

    Comment by Anti-Douchebag — January 10, 2008 @ 07:26PM

  8. Did I read that right? Is it ASCAP or ASSHAT? Well, whatever, there's hardly a difference.

    Comment by Anti-Douchebag — January 10, 2008 @ 07:26PM

  9. I like that you had to post that anonnymously here, Josh.

    Comment by Andrew Hime — January 11, 2008 @ 09:21AM

  10. If 500.00 in back payments to ASCAP and 1,700.00 annually in operating fees amounts to a financial hardship for rubber gloves and/or the DFW music scene in general, then it seems to me that the issues go much deeper than what is being reported. In my mind, there are only three explanations here. 1. The premise of the article is disingenuous 2. The business model that RGRS is operating under is seriously flawed 3. The DFW area is simply not a viable market for this type of business. My personal experience with the local music scene, and Rubber Gloves in particular would logically, at least to some degree discount explanations 1 and 2. DFW is a tough market, but history has proven that smart business minded people with good taste in music can make it work. It seems to me that the REAL problem here is a philosophical disagreement with the fees themselves, and to that I can only say GROW UP. You are running a business. Your employees and local artists depend on your club – which means they depend on you to make smart, business minded choices. I know it sucks having to compromise on any level, but at the end of the day you can do more good by staying open than you can by being stubborn and getting shut down…

    Comment by Derrick — January 11, 2008 @ 09:36AM

  11. you're right, derrick.
    it is a philosophical disagreement.
    most definitely.

    yeah, i'm gonna to have to pay them.
    i have no choice.
    they've never lost a case. they know that your legal fees will outweigh their licenses, and who the fuck wants to spend money fighting for the principle?
    stupid right?

    so they'll get their check. as will bmi. as will sesac. but before i sign, guess what? i'm going to make a stink about it. i'm going to share my story with others involved with local music.
    the system is flawed and needs to be reevaluated.
    clearly i am not alone in feeling this way.
    even their top brass agrees, yet no one will do anything about it.
    and i should keep my mouth shut why?

    jb

    i don't post anonymously, hime.
    run along, now.

    Comment by josh baish — January 11, 2008 @ 12:55PM

  12. It seems odd that the article is conflating ASCAP going after the Boy Scouts for singing "fireside songs" that probably should be (but aren't) out of copyright by now with a club owner who simply ignored the reality of the nature of his business for what seems to be years. RGRS isn't a bunch of rubes hanging around in a warehouse jammin' for jammin's sake getting crushed by THER MAN; it's a venue that has been booking bands, large and small, for years, and not bothering to pay licensing fees.
    Sheesh.

    Comment by Filth — January 11, 2008 @ 02:18PM

  13. uh, we have paid their fees.
    over and over again.
    to the tune of a few thousand dollars.

    c'mon now, rob.
    i've always championed house of tinnitus.
    back off.

    Comment by joshbaish — January 11, 2008 @ 02:45PM

  14. uh...we have paid their fees.
    for years.
    to the tune of thousands of dollars.

    wait til they come after house of tinnitus.
    which i have always championed.
    tell me then if you feel the same.

    c'mon, rob..

    Comment by josh baish — January 11, 2008 @ 02:49PM

  15. Josh,

    Ah, I must have misunderstood the article. It implies that they were after you for unpaid fees. So if you'd been paying for years, what was their justification for wanting $8500 or whatever?

    Comment by Filth — January 11, 2008 @ 03:38PM

  16. Hey Josh, for what it's worth, I agree with the philosophical argument to a degree. In principle I like what ASCAP is trying to accomplish, but in reality the distribution of wealth among artists is pretty absurd, especially considering the clientele of your establishment (which I really like by the way). I guess my concern more or less was that getting into a stand off with these guys while emotionally correct, probably isn't the most sound choice for your employees and patrons - but it sounds like you are headed in the right direction - so best of luck to you my friend. Keep the doors open!

    Comment by Derrick — January 11, 2008 @ 04:09PM

  17. they are after us for back fees.


    after one of their reps called here awhile back pretending to be a fan of a kiss cover band, and then sending a certified letter saying that we, at the very least, guilty of ripping off gene, ace, paul & peter (note: a kiss cover band has never played here), not to mention the constant harassment, i finally had enough.
    they acted in 'bad faith', and their business practices are unscrupulous to say the least.
    i told them i would work with them on a revised contract, and they declined.
    so here we are.

    they're gonna get paid. then i'll have to pay bmi and then sesac.
    i have to. i don't have a choice.
    i'm not going to let rgrs fall because of this.

    it goes beyond my bullheadedness. these are their business practices, and i(like many others) feel it's unfair to place the sole burden on the venue.
    they themselves admit that it's not fair, that it's a flawed system, yet they'd rather continue with their tried-and-true model as it stands.

    they don't have to change, so why would they, right?

    Comment by josh baish — January 11, 2008 @ 04:18PM

  18. He might have actually been a fan of a KISS cover band, and was just making conversation.

    Comment by Filth — January 11, 2008 @ 04:35PM

  19. "uh...we have paid their fees.
    for years.
    to the tune of thousands of dollars."

    "they are after us for back fees."

    Well, that certainly clears that up! Thanks!

    Comment by Filth — January 11, 2008 @ 04:38PM

  20. he could've, but he wasn't.

    'impotent sea snakes'.
    he called them by name.
    and then a week later in a letter to my attorney, he list them as the smoking gun.
    again.
    by name.

    coincidence, right?

    too bad they've never played here, but that didn't stop him from acting in 'bad faith'.
    it's a legal term. look it up.

    so what else you got?
    i'll try my best to answer your questions, but i'm pretty much through with the topic.
    it is what it is, and it will be settled.
    the end.

    Comment by joshbaish — January 11, 2008 @ 06:25PM

  21. i don't understand what it is you want.
    the exact dollar amount?
    the number of years we were in compliance?

    i'm not at my desk, but i'll guesstimate for you:

    we probably ended up paying them ('them' being the pro 3 combined) between $5-$6k over the course of 4-5 years.

    so.
    are these numbers working for ya?
    because i want you to be happy.

    Comment by josh baish — January 11, 2008 @ 06:33PM

  22. and 'filth' is not the person i orginally thought he was (my apologies to rob).
    given my past experiences with the pro 3, 'filth' could very well be one of their agents.

    "just cause you're not paranoid/ don't mean they're not after you"



    don't sue, the check to kurt cobain is in the mail.

    Comment by josh baish — January 12, 2008 @ 11:27AM

  23. Actually, my band, American Blackbelt Academy, DID play the Gambler at Rubber Gloves. Hope we didn't get them in trouble.

    Comment by Toby — January 13, 2008 @ 03:52PM

  24. I love playing music live, but I really freaking hate the music industry. I don't want the fact that I am paying tribute to one of my favorite bands in the form of a cover song to mean that some corporate assholes are making money off the venue I am playing in. I think live music should be fair game and I especially think the music played over loud speakers should be fair game.

    So tell me this...If I throw a party and a band is playing a few cover songs and for some ungodly reason a BMI rep. is there can I be sued $150,000 a song? If the bastards go after the boy scouts I guess I would, right? This, as well as them suing common people for music piracy makes me sick. I wish for a time when the music industry has fallen and all that is left is musicians.

    Comment by Mikey — January 20, 2008 @ 03:26PM

  25. Who killed the music biz? All the little kiddies with their grandiose sense of entitlement who dont think they should have to pay for music anymore since they can steal it on the internet have. They have literally killed music. Now the club owners are going to die off because bands are fighting for whatever income they can get off their tunes. Way to go worthless instant gratification punks.

    Comment by biffula — February 1, 2008 @ 12:09AM

  26. I can't let this pass... I've been playing in clubs for over 30 years. I'm a songwriter but 95% of what I played over the years in clubs was cover tunes.

    It's an American tradition to play covers in clubs. My older brother had a very popular band in the 50's (all covers). I support all artists in getting their cut of anthing published or recorded but live music is different. Performing another artists songs live is another way besides the pay-for-play radio bizness to encourage people to buy the album or CD. It also gives new musicians and bands a learning experience.

    Sure, the rep will settle for less. He just wants the club owner to get in the habit of paying, anthing to get them signed on. The amount will be adjusted later. You can bet on that! This is just GREED and INTIMIDATION!
    As if the damn club business isn't tuff enough already! So what do we do about it? Very sad...
    Dan Botkin

    Comment by Dan Botkin — February 1, 2008 @ 11:09AM

  27. I consider playing a cover band a FAVOR for the artist who wrote it.
    It's free fucking advertisement for them!

    Our band would occasionally play an obscure cover no one had heard, and people watching would mistakenly believe that WE wrote that song.

    We'd say, "Oh no, that song is by (insert band here). It's just a lesser-known tune."

    And the person would say, "Oh, wow, I love that band and I've never even heard that song!"

    So just by playing that song, my band re-kindled interest for that person in the band whose cover we just performed.

    YOU SHOULD BE THANKING ME MUSIC INDUSTRY!!!

    Comment by Matt — February 21, 2008 @ 12:30PM

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