Fight Songs

Rric Rifkin is one of the newest members of The American Society of Composers, Authors and Publishers (ASCAP). Just don’t ask him what, exactly, are the benefits of his membership. “I hope to reap the benefits of being an ASCAP member, I really do,” said the owner and executive chef of Patchogue restaurant BOBBiQUE, hardly masking his sarcasm. “If you find out what those benefits are, let me know. If they give me round-trip airfare and tickets to the ASCAP Awards in Vegas, that’d be great.” BOBBiQUE was one of nine Long Island restaurants and clubs that were cited by ASCAP in August for copyright infringement. It sounds pretty ominous, but for most of the businesses involved the citations simply alleged they played music over the establishment’s
speakers or employed a live band that played a cover song.

For many in the community, it sounded like a proverbial case of David versus Goliath, the small business owner against the greedy, music corporations. But ASCAP isn’t technically part of any large record company, even if some of its members (read: musicians and songwriters) are signed to those companies. Along with organizations like Broadcast Music Incorpo- rated (BMI) and the Society of European Stage Authors and Composers (SESAC), ASCAP is a performing rights organization (PRO) tasked with licensing music and collecting royalties for artists when their work is performed in a public setting. Taken together, the three organizations represent hundreds of thousands of musicians and negotiate licensing deals that net billions of dollars.

Most of the time PROs are busy licensing music to radio stations, sound tracks and, in more recent years, streaming services. But they also enforce existing and, some would argue, outdated copyright laws regarding restaurants and clubs. These statutes essentially state that if a business owner plays music, they must pay the artists who wrote that music. Moreover, even if a business owner purchases a license from ASCAP (they range in price depending on the size of the business, but ASCAP claims most businesses pay from $700-$750 annually), that same business might also have to purchase a license from BMI or another PRO. PROs have been citing businesses for decades for these kinds of infringements. Many of these businesses believe that the PROs have stepped up enforcement of these laws due to musicians losing royalty revenues to illegal downloading and, more recently, music streaming. The latter’s revenue sharing model is still being fought out in court and on the Internet (see: Taylor Swift).

To put it in a term from the digital age: It’s complicated. Rifkin has since settled with ASCAP after originally being fined $30,000. (Neither side is allowed to disclose the actual amount of the settlement.) But Rifkin still believes ASCAP is going after local businesses because artists aren’t selling as many albums these days.

“It all comes down to dollars and cents,” said Rifkin, who received letters from ASCAP before he was officially cited. “ASCAP is a not-for-profit organization, so after they pay themselves, they take this pool of money from the whole country, from venues like mine, from bigger venues and so on, and they pay the top five percent of the performing artists of the year. So BOBBiQUE is playing blues and classic rock music, but Lady Gaga and Beyoncé are getting the money?”

ASCAP claims that just isn’t true. “I understand if they have an attitude like, ‘Oh, Jay-Z doesn’t need another dollar from me. I’m just a little business,’” said Vincent Cadilora, ASCAP Executive Vice President of Licensing. “I think that’s the biggest misconception. I don’t think they understand the difference between recording artists and the songwriter. The overwhelming majority of ASCAP members are songwriters, not recording artists. “I think that a lot of establishments that offer music, whether it’s recorded or live, tend to think they spent the money on the download and that ought to take care of it. The fact of the matter is it simply doesn’t. Songwriters get next to nothing from that. They rely on the performance of their works. Yes, a musical composition, a song, is an intangible, but it’s their property.”

But how much of that money are songwriters actually getting? Cadilora claims there are many factors that go into dividing the proverbial pie. Obviously, he said, the bigger a song is, the more money an individual will receive. It can be larger than six figures. It can be as low as six cents. But Kerry Kearney, a local blues musician, quickly jumped to the defense of local clubs. He explained that he’s seen firsthand how much musicians make in PRO royalties.

“I’ve been with BMI for a long time,” he said. “I used to play with Jefferson Starship when I was in my 20s, so I know how these companies work. Supposedly ASCAP is giving everybody on their roster the same amount of money, but I found out that’s not true. Only the top 200 artists are getting the money and guys that are independent aren’t getting anything. I can go and play a gig and make enough money to make a living so I’m not going to complain, but if you talk to the little guy, he’ll tell you he hasn’t seen anything.” Cadilora responded to this charge: “Google ASCAP and you’ll see that we just celebrated our hundredth anniversary,” he said. “Anybody who thinks we’re a scam or a shakedown, that just doesn’t hold water for me.”

Of the original nine area establishments cited, six had settled with ASCAP as this issue went to press. Now that the dust has settled there seem to be two areas in which both ASCAP and club owners agree: although these types of citations have been handed out for decades, they will likely increase in frequency now because the web has made it easier for ASCAP to track venues that play music. In the past PROs needed to send licensing agents out to collect data on the performance of copyrighted songs. Now all they have to do is log onto a venue’s website to get a general idea. The other gray area that both ASCAP and business owners would like to see improved is education. They feel that government should do more to educate business owners about licensing so that they’re not, as Rifkin put it, “banged over the head.”

“I didn’t know anything about these laws. But when I fill out a liquor application I have to get fingerprinted, background checks and they want to know everything,” said Rifkin. “One day [ASCAP] is going to cite the wrong guy and he’s going to fight them and then it’s going set a precedent. Things will change. But I don’t need to be that guy. I don’t have those pockets.”