[Harp-L] RE: public domain / ASCAP lawsuits

[Tom Ball <havaball@xxxxxxx>]

As performers, there is no need to worry about covers vs. originals 
at gigs.  BMI and/or ASCAP deal with the club owners, not with the 
musicians. Even if the club refuses to pay, it's not on us as 
musicians -- it's between the club and the performance rights 
organization(s.)

As recording artists, however, things become more complex. The record 
company is obligated to obtain compulsory licenses for all 
non-original songs, and must pay royalties of 9.1 cents per song, per 
unit sold.  If you have a contract -- i.e. if you are signed to a 
label -- then it's not your worry; it's up to the record label to pay 
these royalties. However, if YOU are the "record company," then you 
have to pay the royalties, or face possible lawsuits for copyright 
infringement.

In the old days it was possible to sort-of fly under the radar if you 
were doing a tiny pressing, but nowadays, with everything 
computerized, publishing houses routinely search for cases of a song 
being recorded without a license, and they don't hesitate to pursue 
copyright infringement claims.

The easiest way to take care of all this is to prepay online for (X) 
units, via the Harry Fox Agency.  http://www.songfile.com
They also have a search engine where you can look up any song by 
title, and see who wrote it and who published it. (BMI and ASCAP also 
have searchable data bases.) If you are in doubt as to whether an old 
song is in the Public Domain, I suggest searching there for the song, 
then looking closely at all the recorded versions. If somebody has 
recorded it as "traditional/arr by (themselves,)"  that's usually a 
pretty good indicator that the piece has fallen into the Public 
Domain, and therefore can be recorded royalty-free.

Please keep in mind however, I am not an attorney. I only play one on TV.  :)

cheers,
Tom Ball
http://www.tomball.us