PROs and cons

June 20th, 2010

Today, my friends, we explore the follies of youth, overripe expectations, and the extent to which we musicians end up with the short end of our own damn stick.

Many years ago, when I was a young, impressionable musician, I joined BMI, one of the three performance rights organizations (PROs) in the United States. Hey, I was going to be a star, right? Gotta have someone to collect all those dollars from my airplay. I received my contract, which I signed forthwith, and set out to become the star I was bound to be.

Now, PROs in the United States are globally unusual, for two reasons: first, there are more than one of them, and second, they decline to collect playlists for live performances, but rather use another formula – say, airplay – to determine the distribution of live performance fees. And third – although I have no idea whether this differs in other countries – they pay their agents on commission.

Let’s consider, now, if we might, the fetid consequences of this particular arrangement of things. First, if you’re a venue, and you have music, you have to pay fees to all three PROs. Because the chances are that the artists you present or play on your stereo are performing songs by songwriters represented by all three PROs. Second, if you’re an agent of said PRO, your motivation is to mislead the venue, because the higher their fees, the higher your salary. Third, if you’re a member of one of these PROs, the venues you play at are liable for paying fees to that PRO – yes, they owe fees for your performances of your own music – unless you issue a separate license to that venue, which you wouldn’t be doing unless the venue wasn’t paying any fees to the PROs – a license which, by the way, you have to forward to your PRO, which, if the venue was not paying PRO fees, might be interpreted as a hostile act.

Now, don’t get me wrong – people deserve to be reimbursed for the performance of the music they write. So says the copyright law in the US, which I’m actually kind of supportive of, at least I would be if the copyright maximalists would crawl back under the rock they oozed out from. But – ahem – people deserve to be reimbursed for the performance of the music they write, which is most emphatically not happening. Because the formula for distribution of live performance fees is based on airplay rather than actual song lists, Taylor Swift is being reimbursed for the performance of the music I write. Which is, unsurprisingly, not cool. Unless you’re Taylor Swift.

So imagine, today, being a small coffeehouse. Like, say, Somethin’s Brewin in Lakeville, MA, one of my favorite venues – at least until it stopped presenting live music. Imagine having long, rude, unpleasant discussions with PRO agents who insist that it’s up to you to prove to them that their music isn’t being presented at your venue. Imagine your fury when you discover that Sam Bayer, a local fave, doesn’t even receive the fees you’re paying for his performance. Imagine being complete, utterly, irretrievably disgusted.

Ironically, it seems, BMI was founded as a less odious alternative to ASCAP, and, again ironically, pioneered fees based on a sampling of actual live performances. Today, they’re no better than the rest of them. My contract doesn’t let me quit BMI except during a window that occurs every two years (and yes, I’m told by a reliable lawyer that it’s enforceable); I don’t get reimbursed for my live performances; I can’t waive my performance fees except by tattling on the venue; and I can’t even vote to change BMI, because, although its board is elected by its members, the votes are allocated according to ¬†– you guessed it – airplay.

So if I want to play at Somethin’s Brewin, I’m hosed until I can quit, next September. It’s not that the club is doing anything illegal – like I said, they’ve stopped doing live music – it’s just that they’re not interested in the hassle of trying to convince BMI that they’re not doing anything illegal. So we’ve lost another venue, and BMI and ASCAP and SESAC don’t collect any fees at all from that venue – and nothing is, in case they haven’t noticed, less than some sort of negotiated fee rate – and their agents don’t get any money, and the songwriters they represent don’t get any exposure there, and I’ve lost a stage that I really like – it’s just a win-win situation all around.

There’s no reason for me to belong to a PRO. None. There’s no reason for just about any of us to belong to a PRO. For the vast majority of original singer/songwriters, gig income and album and download sales will be the only dollars they ever see from their music; even if you get a bit of airplay, you’ll never see a dime from it. Had I actually thought about this, and understood my music career clearly, it would have been obvious to me – but no, I had to succumb to the lure of lucre.

Especially without a waiver for my own performances, my contract with BMI is just a boat anchor. I’m simply fodder for them – a number they can point to when they call the tiny coffeehouses to shake them down.¬†There’s only one word for the PROs nowadays: thugs. And I’m ashamed to have them represent me.

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