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!