Pay to Play

Stephen Geyer is losing gigs. And, ironically, it's because of the
organization sworn to protect his ability to make a living as a songwriter

Thirty years ago, Geyer, a Ventura County resident who has written
everything from TV theme songs to pop singles, signed with Broadcast
Music Inc. (BMI), one of three performing rights organizations (PROs)
in the United States. Together with the American Society of Composers,
Authors and Publishers (ASCAP) and the Society of European Stage
Authors and Composers (SESAC), the triumvirate represents all
copyrighted music in the country. Their responsibility is to collect
compensation for the use of that music by any business in any medium
for the songwriters and publishers. For Geyer the songwriter, this is
a good thing.

For Geyer the performer, however, the relationship is a bit more
complicated. In order to ensure he is duly remunerated for his work,
BMI and the other PROs must charge venues yearly licensing fees for
the performance of copyrighted material — whether the place holds 30
people or 1,000 people. Typically, Geyer plays the former, and so do,
for the most part, cover bands, who subsist entirely on songs written
(and copyrighted) by other people. Since live music is often not the
focal point of those establishments, the owners frequently opt to cut
entertainment altogether, copyrighted or not.

And for Geyer, that is a bad thing.

"It's basically eliminating the fundamental level of music that leads
to the upper echelons of music," says Geyer, who recently penned an
open letter to BMI president Del Bryant encouraging the company to
review its licensing policies. "These are places where acts hone
themselves, where young people begin to take it out of their living
room and put it in front of an audience, or where professional
musicians such as me who love to perform are given the opportunity to
be heard and appreciated by local audiences. It's killing that whole
area."

Representatives for ASCAP and SESAC did not immediately return
requests for comment, but according to Jerry Bailey, senior director
of media relations and business communications for BMI, his company's
annual fee ranges from as low as $300 to $9,000 per year depending on
a number of variables, including occupancy. Regardless of the venue's
size, if music is played — whether live or recorded — they must pay,
although both BMI and ASCAP operate on a not-for-profit basis (SESAC
maintains a percentage of royalties). According to Bailey, his company
distributed approximately 87 percent of license fees collected in the
last fiscal year to its songwriters and producers.

"Any business or any organization that performs copyrighted music is
required to obtain permission from the copyright owners prior to
playing the music," says Bailey, speaking from BMI headquarters in
Nashville, Tenn. "It could be a radio or TV station, Wal-Mart or the
corner bar."

In regards to keeping tabs on the latter, Bailey says BMI staffs
employees at its seven branches to monitor bars, restaurants and small
clubs — referred to as "eating and drinking establishments" (EDEs) —
across the country. If they are "fairly certain" music written by BMI
clients is being performed at a particular EDE, a researcher will
visit the venue, pick up receipts, take "very meticulous" notes and
utilize a micro-recorder, which can later be analyzed using advanced
digital recognition technology to determine if any songs are played
that night belong to BMI (and considering they represent roughly half
of the copyrighted music in existence, that's always highly possible).
From there, the company will begin contacting the venue.

"We start out polite and educational," Bailey says. "We explain how
copyright works, selling the value of the service we provide. It's
non-threatening, non-intimidating and of educational nature. As time
goes by, contact becomes increasingly stern, and we inform them of
their responsibility under copyright law."

While Bailey says fees from EDEs account for only 3 percent of BMI's
yearly revenue, Geyer claims they use "intimidation" and "threats of
lawsuits" to extract it. "They come in with a lot more than their hand
out — they come in with a hammer."

Adds local blues guitarist Teresa Russell, "There are stories out
there of storeowners who having no idea who they're dealing with and
thought they were being shaken down by the Mafia." She says many of
the clubs she deals with haven't even heard of PROs until being
contacted by them. "My goal is to let the club owner become more aware
of this. Half of them who have approached me never heard of ASCAP and
BMI. When they get letters and these packets, they say, `What is this
about?' "

Kate Sumner, owner of It's All Good in Ventura, had only tangential
knowledge of the requirements when a PRO representative dropped off a
business card. Rather than risk getting the plug pulled on live music
at the bar, she decided pay for the licensing.

"I've heard so many horror stories about how we could get shut down,"
Sumner says. "I felt we had no negotiating power, and I didn't want
them to come in and turn me off."

Sumner says she is now paying a combined $1,800 per year to the three
organizations, giving her and the groups that perform at It's All Good
lawful access to a practically infinite song library — even though the
number of nights a week the venue features live bands is half what it
is in the winter than in the summer.

"For us, we have to do it, because entertainment is our main
business," she says. "We pay for food and beverages, but [live music]
is what keeps us competitive."

According to Geyer and Russell, however, many establishments choose to
simply eliminate live music completely. Russell says she had begun
performing once a month at Andy's Seafood in Port Hueneme, but once
ASCAP came calling, they canceled her appearances. Same when she
started at Tipps Thai in Downtown Ventura.

"It's like they're stalking my Web site," she says.

Both musicians admit it's a double-edged sword for them: As
songwriters, they appreciate having a company protecting their
intellectual property.

"It helps me survive as a musician," Geyer says. "However, there needs
to be a balance." He believes venues of a certain size should be
exempt from paying fees, similar to how the government subsidizes
small businesses.

Bailey counters that selecting an arbitrary minimum capacity level is
impractical.

"If we decide anything under the occupancy of 50 is exempt, people who
have an occupancy of 60 are going to be upset," he says. Besides, PROs
are bound by federal copyright laws, which do make exceptions based on
occupancy. "At some point, BMI has to say, `This is the law, and we
expect businesses of every size to obey the law.' "

But Bailey insists BMI is not unsympathetic to small venues or the
performers who depend on them for their creative development.

"Every songwriter starts out on a local level," he says. "Many start
out in a local club. If they're successful commercially, and they move
on to a higher plane, we want them to become members of BMI. We want
to understand what we're doing. But we are aware there is a certain
level or a certain plateau for early songwriters, where it can
restrict the number of live venues out there."

Over the course of its nearly 70-year history, BMI has tweaked its
regulations in an attempt to find the kind of balance Geyer desires,
one which satisfies both performers and songwriters.

"It's not a perfect system," Bailey says, "but it's the best system
humans have been able to develop up until this point."