Live Performing Woes, part 2

A few weeks ago I wrote about how performing live music – and industry already on life-support – is additional burdened by restaurant and club owners having to pay royalty fees  to musicians who are already rich and – more and more often – dead. I spoke with a musician last week who said that back in the 80s a good musician would have to be paid a minimum of $250 just to hold a Saturday night. That’s no longer the case.  Save for the big acts, live music earns a fraction of what it used to earn, and the strict enforcement of music licensing fees aren’t helping matters.

Or perhaps I have it wrong. I received a number of terrific comments for musicians and non-musicians alike, and the take away for me is that not everyone agrees with my conclusions and even those who do aren’t sure how to rectify the problem. 

One reader questioned whether small establishments are being paranoid to think that the big music publishing organizations are really going to charge fees for not following the rules. I wish that were the case, but unfortunately there are well-publicized examples of restaurants and clubs getting hit with fees from ASCAP, BMI and the like.

A friend of mine shared this little tidbit: a coffee house here in Elmhurst no longer allows musicians to play cover songs because they find paying the ASCAP fees prohibitive.  Another musician said that his band once had to change its playbill from “rock and roll covers of your favorite bands” to “live music” (or something equally generic) because of concerns of music licensing fees.

Other musicians noted how unfairly stacked the music industry is against the “little guy,” not only when it comes to live performing, but in the realm of downloads, streams and radio play.  As he says, “more opportunities equals harder to track,” and companies like ASCAP and BMI definitely have their hands full when it comes to figuring out how to collect fees for all of the different mediums out there. I couldn’t agree more. I believe that listening to a recording should garner income. I’m not as convinced about live performing, nor was this reader. After all, imagine if the Top Ten Club in Hamburg or the Cavern Club in Liverpool had been hounded by music royalty collection firms. Would The Beatles have been able to make a go of it?

But perhaps this view is erroneous, because it’s based on an entirely different system. One reader commented that back in the day everyone was working together: musicians would pay the union, the union would ensure that musicians were being paid properly, the clubs paid fees to the publishing companies, and people paid for live music. Today, people don’t want to pay for music unless it’s big time acts, and therefore club owners don’t want to pay fees (or musicians). This person wrote: “If successful songwriters remembered what it was like to play songs they loved for peanuts and (if) record companies kicked a little more back to the writer/artist they wouldn’t feel the need to squeeze as much as possible out of the everyday live musicians.”

But the model of people paying for music is “dead and buried,” lamented another reader. The songs are now “the fuel for the touring engine” whereas several decades ago the reverse was true. Fewer people are playing out on the weekends and they are earning less than ever, so the music collection companies must really be desperate to go after the little guys.

Another reader wrote that “both the bar and performers make money from playing music someone else wrote,” and he understands why fees should be collected. He does feel that the fees are out of proportion with the income that’s being generated, however. Another reader agreed, stating that “others should not be free to profit off your work without some remuneration to the owner,” but was at a loss as to how the current model can be changed.  He thought perhaps some percentage of total revenue generated from covering music should be paid as music royalties.

These were all welcome comments, and though I might wish that today’s business model were similar to that of decades ago, the time of musicians, music unions and clubs all working together to give patrons a quality live performance are largely gone. It all comes back to the consumer: if people aren’t willing to pay for recorded music and if they aren’t willing to pay a cover for a live band, then the whole system breaks down. What remains is a poor replacement. Good musicians – and some really, really bad ones, too – are being paid poorly for club owners who are probably being paid poorly but who still have to pay fees for already-wealthy musicians who no longer make money off of their old catalog because consumers are downloading it for free.

Say it with me: “Oy!”

BEWARE! Don't play that song!

A musician I know recently received a list of approximately seventy artists he's no longer allowed to play at a particular restaurant. They include: Bruno Mars, Katy Perry, The Eagles, Smokey Robinson, Fleetwood Mac and Bruce Springsteen. Luckily, the inclusion of Megadeth on the list didn’t affect my friend’s playlist, but the others did.

So, what do all of these artists have in common?

They’re all part of the company Global Music Rights, a music publishing entity led by Irving Azoff whose mission is to collect higher performance royalties for artists, some of whom haven’t played music for decades by virtue of the fact that they’re dead. John Lennon, for instance, and Ira Gershwin!   

On the surface, demanding more money from radio conglomerates and on-line streaming services like Pandora might seem like not only a reasonable business pursuit, but even a moral one, the equivalent to Major League ballplayers demanding more of the pie from greedy owners back in the 70s and 80s. According to a New York Times article on the topic, a song that’s streamed around 40 million times on Pandora only collects approximately $2200 under the traditional publishing compaies of ASCAP and BMI, and since the music industry has taken such a tremendous hit on physical sales, it's reasonable that some artists would try to make up for the loss elsewhere. 

Of course, nothing is forcing a radio station to play Journey’s “Don’t Stop Believin’” for the billionth time. Hell, maybe Global Music Right will be doing everyone a favor by eliminating overplayed songs from our radio dial. But either way, I concede this end of the business strategy. I don’t care if 97.1 FM "The Drive" in Chicago (which is of course owned by a large broadcasting company) has to pay a little more to play “Hotel California.” (Though can we all agree that the estate of Ira Gershwin should give it a rest, already?)

But what about musicians? Not DJs, mind you, who play the original recording, but musicians who play an interpretation of the song? Should the arms of performance rights enforcement extend this far? 

I will play around forty gigs in 2016 plus another forty-five church services and will be lucky to gross – get this – $10,000 for doing so. I’m not joking. I earn less per hour than my teenage daughters. And yes, just like no one is forcing a radio station to play Journey, no one is forcing me to play music for money. I could call it a day and start working in human resources again and within a matter of months slit my wrists.  

But the questions is: should musicians really be restricted by what songs they can play? And should restaurant owners really be paying licensing fees for hiring a cheap-ass band on a Saturday night doing serviceable covers of well-known songs? I see small restaurant owners, program managers of struggling park districts and night-shift supervisors of dive bars on a weekly basis, and they’re not exactly driving Teslas to work. Still, my musician friends often have to protect themselves and include a clause in their contracts stating that the restaurant owner is liable for any licensing fees associated with hosting live entertainment.

What about large national restaurant chains that own hundreds of locations nationally? Surely they can pony up the cash to the publishing companies, right? Perhaps. But I know of at least one national chain that has opted not to pay the likes of Irving Azoff, and who wins in this scenario? Not the musician. Not the music publisher. Not the composer. Not the patrons (unless avoiding certain artists is a plus). And not the restaurant owner. It’s a lose-lose-lose-lose arrangement.

Should live performances be exempt for paying licensing fees? If yes, what if James Taylor plays a Carol King song at Wrigley Field next week (as he most surely will)? Should Carol King get a cut? What if I play a Carol King song this weekend at a dive bar? The two scenarios are not equivalent, and I could imagine the law drawing a distinction between the two. But where should the line be drawn? Should licensing fees only be paid when an artist plays in front of an audience of 500 or more people? 1000? 10,000?  

I can't say for certain, but I can say that it would be ridiculous to ask a rock band making a cool $400 on a Saturday night to pay performance fees, just as it's equally ridiculous to ask the small bar that's hosting the music to do so. Something's gotta give here.

Maybe restaurant owners nationwide will wise up and refuse to pay licensing fees altogether, and bands can go back to doing what they used to do: play original music. Who knows? A musical renaissance may be just around the corner!