ASCAP, BMI and SESAC Force Local Coffee Shop To Shut Down Live Music

Maria Antonowisch and Jon Bennett aren’t your typical venue owners. The majority of the money they make on their concerts they donate to charities. Pictured above is them handing a check of their concert proceeds to the Backstoppers, an organization that helps the families of fallen police officers and firefighters.

“We don’t do this to make a lot of money. We do this as a community service. We do this for the kids who are trying to break into the music business. And now it’s gone. And that’s the damn crime of the whole thing,” Bennett confessed, “they (the PROs) wouldn’t negotiate to a point that made it more realistic for a small venue like ourselves.”

The couple owns a coffee shop, Bauhaus Kaffee, in the sleepy town of Farmington, Missouri – about 45 minutes south of St. Louis. Population 18,000. The coffee shop seats about 55 people, but the fire department capacity is 96. So that’s the number that the PROs used to calculate the blanket license rate.

Antonowisch explained that once ASCAP got wind that they had live music (even though they were only holding about 12 concerts a year), ASCAP began their crusade. “They called us everyday. They sent two letters a day. They threatened us with a lawsuit because they said we had violated copyright,” Antonowisch lamented. As not to get sued, the coffee shop owners conceded. They agreed to pay ASCAP the $600 yearly license for the right to have live music.But then they found out that there was another PRO that required the same license. BMI. They actually contacted BMI directly, “they were very surprised that we called them,” Antonowisch remembers. BMI charged them about $500.

Now their total was up to $1,100 a year.

Then, as luck would have it, SESAC got in touch. And they demanded just over $700.

They pay $350 a year for the commercial version of Sirius/XM (which includes PRO recorded music fees) for their in house music.

So their total cost for music was just over $2,100 a year. When they don’t make much (or anything) from their live concerts, as most of their shows are ‘pass the hat’ kinds of performances, they couldn’t justify having live music anymore.

This couple, like many other small business owners, don’t know the music industry. And why should they? They don’t know music copyright law (hell most songwriters don’t know copyright law). Bennett worries that there will be more organizations in the music industry that will come and try to shake them down. Currently, there are only 3 PROs in the US. However, with Sony/ATV threatening to pull their catalogs from the PROs and go at it on their own, who’s to say they won’t go after Bauhaus for yet another license? If Sony/ATV is successful, will other publishers pull out of the PROs as well? Time will tell.

ASCAP sent me the document that outlines their approach to licensing small businesses. It explains what’s required of the small business under the law, and explains that 88 cents out of every dollar goes back to the members (songwriters and publishers). ASCAP and BMI are non-profit Performing Rights Organizations (PRO), SESAC is for profit.

*Update 10/30/14 3:28pm – Legally, any songwriter is allowed to play his or her original music at any establishment without that establishment having to pay for a license, HOWEVER, this doesn’t matter in the PRO’s eyes and won’t deter them from going after the venue. Bauhaus actually explained to ASCAP that all of their musicians play original music and ASCAP shot back “how do you know? Do you know every song ever written?” So the PROs won’t believe a venue if they claim that they only host original music. And all it takes is one musician to play one cover song for a PRO to sue for serious damages.

All it takes is one musician to play one cover song for a PRO to sue a venue for serious damages.

The coffee shop owners were most disappointed that there was no negotiation allowed with ASCAP. Should a 100 cap venue that hosts concerts 7 nights a week at $25 a head be treated the same as Bauhaus – with their 12 free concerts a year? In the PRO’s mind yes. I’m not so certain.

“They were not interested in negotiating with us,” Bauhaus Kaffee owners

Full disclosure, I’m an ASCAP songwriter. I appreciate the ASCAP checks I receive. I know that a tiny, minuscule fraction of that $600 that Bauhaus paid went to me. But at the same time, I don’t want my performing rights organization to force small businesses offering a service to the community to stop.

There are no places for up and coming musicians to play in Farmington. The couple mentioned that the local community college students even got school credit for performing at the coffee shop.

It’s kind of ironic that these PROs are inadvertently preventing potential future members from getting their start by forcing venues to stop hosting songwriters.

“Some of the best music has come out of the coffee shop scene,” Bennett professes. “We wanted to create an environment reminiscent of Cafe Wha in Greenwich Village.”

There has to be some middle ground. Bauhaus should not have to stop offering their occasional concerts. I’ll take a few fractions of a cent less on my ASCAP checks if I know that the establishments (similar to those where I got my start) can continue offering up and coming songwriters a chance to showcase some of their material. Would I be where I am today had I not had an opportunity to play at the European Grind or the Steak Knife in Minneapolis? Probably not. (They’re long gone, no need to go after them, guys)

I think a new license breakdown is necessary for all three PROs.

Instead of calculating fire department capacity, why not business gross? Those numbers are filed with the government. Or what if it’s based on the number of concerts offered a year. 1-24 = x amount. 24 – 52 = y, 52+ = z. With the data that BMI receives from BMI Live and ASCAP receives from ASCAP OnStage (where performing songwriters can input their setlist and venue data from previous shows), it would be easy to notice if these venues were seriously fudging this info. And with one click of a mouse the PROs could take a look at the venue’s concert calendar to see how much live music is actually a part of their business.

The PROs have been helping songwriters sustain a living since their inceptions in the early 20th century. They fight for us in Washington to (attempt to) make sure the laws accurately reflect the current realities of the musical and technological landscape. Could they alter their policies a bit to look out for the establishments that provide a supportive environment for songwriters?

The Bauhaus owners respect songwriters. They respect copyright. They willingly paid once they realized they had to. But with all of the fees from all of the organizations, it got to be just too much. I encourage the PROs to include a few more shades of grey and update their outdated policies.

Ari Herstand is the author of How To Make It in the New Music Business, a Los Angeles based singer/songwriter and the creator of the music biz advice blog, Ari’s Take. Follow him on Twitter: @aristake

* a previous version of this article incorrectly implied that Bauhaus’ Sirius/XM subscription was a consumer subscription.