Archive for Thursday, January 28, 2010

Re-opened mic: After a run-in with the copyright police, Mudstomp Mondays picks up where Pub Sessions left off

Dave Barnhill, former Pub Sessions organizer, stands in front of its former home at Dempsey's Pub.

Dave Barnhill, former Pub Sessions organizer, stands in front of its former home at Dempsey's Pub.

January 28, 2010


Mudstomp Mondays with Cowgirls' Trainset
  • Where: The Granada, 1020 Mass., Lawrence
  • Age limit: 21+
  • Cost: $2

Full event details


The day the music died came earlier than expected at Dempsey's Pub.

For a too-short year, the Pub Sessions brought bluegrass cheer to the fledgling bar at 623 Vt. Young pickers jammed alongside the older generation who came of age at the Walnut Valley Festival in the 1970s. Frequent guests included members of JR & the Juniors, The Calamity Cubes, The Prairie Acre and The Alferd Packer Memorial String Band. The event was free, and the beer flowed freely, especially for the musicians who accepted pints as payment.

Then, last fall, it all came to a crashing halt. The wrecking ball was a letter from ASCAP: The American Society of Composers, Authors and Publishers. It informed Dempsey's that the bar would have to pay licensing fees if it wanted to continue hosting live music, unless it could prove that no copyrighted material would ever be performed. It also said that an ASCAP representative would happily fly out - at Dempsey's cost - to listen to a jam session and determine whether any music was copyrighted. If Dempsey's could pass the sniff test, the bar would thereafter be subject to a fine in excess of $1,000 if someone got caught singing "Happy Birthday" (or any other copyrighted song) within its walls.

Faced with the choice of paying thousands of dollars in annual licensing fees or risking a subpoena from an ASCAP lawyer, Dempsey's simply opted to stop doing live music.

And just like that, Lawrence's bluegrass scene sung a high lonesome song.

Aggressive policy

In the music business, ASCAP - and related organizations like BMI and SESAC - are often regarded as heavies who ruthlessly extort money. Once your venue pops up on ASCAP's radar, you won't get them to go away until you pay the fees or turn off the music: whether it be on a stage, in a jukebox or from a bartender's iPod.

Since 1914, ASCAP has defended the rights of its members: songwriters who wrote hits such as "Mack the Knife" and "Danny Boy." The union sticks up for the Don Schlitzes of the world. If you're not familiar with Schlitz, he wrote "The Gambler," but he never sold a fraction of the tickets, T-shirts and chicken wings that Kenny Rogers unloaded.

Even the venue owners who grumble about their yearly ASCAP dues generally are sympathetic to ASCAP's mission: ensuring that songwriters get a cut whenever and wherever their music helps bars make a buck.

But when the system results in the demolition of a cultural institution such as the Dempsey's Pub Sessions, the whole system can seem a bit out of whack.

In the eyes of former Pub Sessions organizer Dave Barnhill, ASCAP is silencing the very songwriters they purport to protect.

"The horrible thing about it is all those small venues can't afford to pay those fees, so they end up shutting down their open mics and songwriter circles," says Barnhill, a guitarist and singer for The Sunflower Colonels. "If you see those outlets disappearing, I think it's really going to affect the roots music scene and the ability for aspiring musicians to pay their dues. It's just going to make it more to where the only music available is whatever is being piped to us from the corporations. I think that's what this whole thing is about: the American tradition of taking money from people who don't have it and concentrating the wealth."

Barnhill believes that ASCAP is becoming more aggressive at targeting venues like Dempsey's, where live music happens only one night a week or less. He maintains that most of the music performed at Dempsey's was original or public-domain material, though he admits it'd be impossible to altogether avoid copyrighted material.

"Even if you think you're doing traditional material, there's always something that they can catch you on," Barnhill says. "What it was coming to was that (ASCAP) was trying to say, 'No matter what you do, no matter what you think, you have to pay us something.'"

Barnhill says he can sympathize with songwriters who don't see a buck when their music is performed. But he's not sure those songwriters would benefit if Dempsey's agreed to meet ASCAP's demands.

"I just don't think we should have to pay The Jonas Brothers and Beyoncé for us to play bluegrass music," Barnhill says. "By and large the majority of that money is going to artists who are on commercial radio and sell lots of albums - which certainly is nobody that we're covering."

Defending the little guy

As ASCAP's senior vice president, Vincent Candilora faces down such criticism on a daily basis. He views ASCAP as the defender of the little guy in an industry that's already skewed against the actual makers of music.

"If music didn't draw people into their establishments, venues would give it up," Candilora says. "The music that's being performed has a value, and the establishment is benefiting from that value. A bottle of beer is a lot cheaper elsewhere."

Since 1914, ASCAP has sent checks to artists ranging from Irving Berlin to Kenny Chesney and 50 Cent. It divvies up earnings based on commercial airplay and sales: a potentially slippery paper trail.

When ASCAP comes calling, however, its methods are very precise.

"We only sue establishments for copyright infringement as a very last resort, and normally after a year of pursuing it," Candilora says. "When we finally do have to sue them we can present to the court the fact that we've contacted them 20 times. We give them every opportunity to comply with the law."

ASCAP polices venues, restaurants, hotels, skating rinks and anywhere else music is played in a public forum via a cross-country network of licensing managers. The "aerial" managers essentially act as spies, showing up unannounced to determine whether a venue is violating copyright law.

"Our first step is to educate the user and to make them aware of what ASCAP does," Candilora says. "Like any other property law, if you're going to use what's not yours, you need the permission of the person who owns the property, and you usually need to pay them something."

Hank Osterhout is firing up a weekly bluegrass night called Mudstomp Mondays in the newly remodeled Granada Lounge.

Hank Osterhout is firing up a weekly bluegrass night called Mudstomp Mondays in the newly remodeled Granada Lounge.

A changing culture

If you're a commercially successful artist who gets radio play and moves units at Best Buy, you probably want ASCAP on your side.

But if you're Hank Osterhout of Deadman Flats, you could give a flying flip.

"There are plenty of other things that bands need to be protected from besides people in bars listening to their music," says Osterhout, who plays bass for the local insurgent-bluegrass act.

"I'm more of a copy-left kind of guy," Osterhout adds. "If you buy a Deadman Flats album, we encourage you to burn it for all of your friends, put it on your iPod, play it in your car, and pick up your guitar and learn the tunes. I would be honored to hear people covering my songs onstage."

In Osterhout's opinion, ASCAP and BMI are outdated models from a bygone era of the music industry.

"There are so many different media outlets and ways that bands can sell their music that you don't need ASCAP or BMI anymore," he says, adding that Deadman Flats obtains a copyright for their albums via the Library of Congress. "We're sort of lucky because we're the people who are making music right now, and we get the opportunity to recreate the industry and use our imagination."

To that effect, Osterhout is firing up a weekly bluegrass night called Mudstomp Mondays in the newly remodeled Granada Lounge. He says he hopes it will pick up where the Pub Sessions left off.

"The Pub Sessions were such a great thing - it was just too bad that it wasn't at a real venue," Osterhout says. "You have this non-blood family that's so connected through their playing. They can be creative together and create beautiful music and have a good time. That's the most important part of the whole situation: having a good time."

And it will be a whole lot easier to do that knowing that The Granada has paid its dues to ASCAP.


anon1958 8 years, 4 months ago

This article is mostly BS and whining. ACAP has to be aggressive because so many places and people violate copyright laws. A close relative of mine ran a country music dance hall and managed to pay the ASCAP fees.

Why should some venues follow the law and others flagrantly violate it? It is a business expense, if you cannot afford it, go into a different business.

Another aspect of copyright law not mentioned here is that if you do not defend your copyright and registered trademarks, then there is a real risk you can lose them if a challenge comes up.

Quoting from the article:

"I'm more of a copy-left kind of guy," Osterhout adds. "If you buy a Deadman Flats album, we encourage you to burn it for all of your friends, put it on your iPod, play it in your car, and pick up your guitar and learn the tunes. I would be honored to hear people covering my songs onstage."

ROFLMAO at this! Osterhout needs to get a clue. Even if you feel this way dont print it in the paper, just in the outside chance you might actually produce something that is financially valuable.

There are plenty of bluegrass venues across the southeastern USA. Just because a local business cant hack it is no justification for the whining, moaning, groaning and complaining in this article.

AnnaUndercover 8 years, 4 months ago

'Whining' my left arm. I bet the ASCAP rep would happily fly out to Dempsey's at their expense!

Until you have been bullied by these people, anon1958, I strongly encourage you to shut it.

Having worked in multimedia for a time, I have a special contempt for organizations like the RIAA, ASCAP, and other jerks who seem to specialize in bullying.

They need to find a fair way to 'check and see' if their material is being used. An all night Google video chat would be a great start!

Dempsey's should've put Candilora and/or one of his cronies--because that's exactly what they are--on a cheap redeye with eight connections--including at least two through Chicago with super short layovers--out to MCI. A free ride on a horse drawn picnic table on wheels will take him out to Lawrence! Yeehaw.

Tell him to pack his favorite tent and put him up in the campground off 40.

Bundle up!

rollcar 8 years, 4 months ago

Most musicians like to think of themselves as artists, and any artist worth my time isn't going to throw a fit and sue the very people whom they are trying to reach with their gift simply because they feel it's "financially viable". That goes for this ASCAP business as well as the bands whining over file sharing. In my book that's the opposite of what art should be, and I'm more than happy to pass these bands over in favor of true artists who are performing for the love of the music, as Mr. Osterhout appears to be doing.

Don't get me wrong, I'm all for the idea of trademarks and copyrights and things, but Steve Jobs never claimed to be an artist, now, did he? Big difference.

Richard Heckler 8 years, 4 months ago

Why did ASCAP decide to tackle DEMPSEY's?

Did someone file a complaint?

lori 8 years, 4 months ago

So, could we get more info on Mudstomp Mondays?

How do artists sign up? How many songs do they have to have prepared or what is their allotted time slot? If a parent is on site, can the performers be under 21?

alm77 8 years, 4 months ago

anon, are you familiar with a band called Phish? Or how 'bout The Grateful Dead? The open attitude held by Mr. Osterhout can be extremely lucrative.

BrianR 8 years, 4 months ago

This can become counterproductive for the artists in a big hurry. For example, Gail Zappa keeps an iron lid on Frank's music, no one can play it, she sues Zappa tribute bands, etc. At the rate she's going, in a few generations, no one will remember who Frank Zappa was. At least he won't be as well remembered as I think he should be. ASCAP and the RIAA are thugs.

A20271 8 years, 4 months ago

You can't sing the Happy Birthday song because it's copyrighted? There are so many restaurants where people sing that song and they probably don't have licensing fees. It seems really unfair. I bet another bar owner complained.

anon1958 8 years, 4 months ago

AnnaUndercover (Anonymous) says…

'Whining' my left arm. I bet the ASCAP rep would happily fly out to Dempsey's at their expense!

Until you have been bullied by these people, anon1958, I strongly encourage you to shut it.

I dont suppose that you are smart enough to see the contradiction of telling me to bottle up my own opinion at the same time as promoting the idea of violating a copyright by expressing the intellectual property of a third party.

More succinctly, ROFLMFAO at Annaundercover's unintentional humor


Danger! Annaundercover at work, irony free zone ahead!



Larry Bauerle Jr. 8 years, 4 months ago

"demolition of a cultural institution"

A cultural institution? After one year? Really?

Eric Ryan 8 years, 4 months ago

I'd be curious to hear just how much small, grass-roots recording artists actually receive each year from ASCAP or BMI. Does each and every artist with a copyright receive a check?

Regardless, there is traditional music out there - music outside the copyright realm - lots of it. Traditional American, Irish and Scottish sessions exist all across the country that play music that is no longer (or never was) held under copyright, yet ASCAP and BMI threaten venues who play such music on a routine basis. In addition, just because a recording artist plays, and copyrights, a certain arrangement of a tradional tune does not mean the tune is removed from public domain...but rather that the particular arrangement of the trad tune is under copyright.

ASCAP will fly out to determine if a location is innocent at the venues expense? ASCAP should have to prove, at their own expense, that someone is violating copyright.

ASCAP and BMI appear to cross the line from enforcement of copyright law to extortion since they allege wrongdoing with no proof any copyright has been violated.

jwalter 8 years, 4 months ago

It is incorrect to assume that BMI doesn't represent bluegrass or traditional music. The "father of bluegrass," Bill Monroe, registered his songs with BMI. So did Earl Scruggs, who invented the three-finger style of bluegrass banjo pickin.' Most of these traditionalists from the middle of the last century registered their works with BMI because ASCAP wasn't interested in hillbilly music at the time. These works are still under copyright, and if the writers are not living, their heirs still receive royalty payments when this music is performed in public (as copyright law stipulates). .BMI also has reciprocal agreements with the organization which represents Irish songwriters (and about 80 such organizations around the world) so it is incorrect to assume that music from other countries is not covered by copyright. BMI operates on a non-profit basis, and about 88% of all license fees collected are distributed to the copyright owners. Sure, songwriters can give their song performances away if they wish, but those who write commercially viable music will need to join a performing right organization if they ever hope to get radio airplay. Radio stations (including those which play bluegrass) will not play music which is not registered with a PRO, since they don't have the time and/or resources to track down every individual copyright holder to obtain written permission to play such music. Radio stations are not in the habit of infringing on copyrights, and BMI was fcreated by radio stations 70 years ago.

Gareth Skarka 8 years, 4 months ago

"Faced with the choice of paying thousands of dollars in annual licensing fees or risking a subpoena from an ASCAP lawyer, Dempsey's simply opted to stop doing live music."

The ones to blame here are the ignorant sheep at Dempseys, who folded like a card table without doing the slightest bit of research.

There are law firms all over the country who will take cases against ASCAP strong-arming pro bono. Any degree of searching the internet on copyright/creative commons/copyleft issues would've have gotten them dozens of contacts.

They "simply opted" to be lazy.

Which is why last-century media organizations like ASCAP, RIAA, and MPAA get away with this BS as they try to maintain the old ways of doing things -- because geniuses like the folks at Dempseys don't fight.

Eric Ryan 8 years, 4 months ago

JWalter - I agree that many arrangements of traditional tunes are under copyright, but there are a large number that are documented to period prior to intellectual property laws and are in the public domain (i.e., O'Neill's Music of Ireland documents hundreds of tunes and songs collected in the field prior to the turn of the 20th century - these are public domain tunes and songs). Bluegrass is a newer tradition, and many more tunes and songs are under copyright in bluegrass than in other "folk" types of traditional music. There are plenty of old type American folk tunes, for example Turkey in the Straw, Soldier's Joy, that are public domain...there certainly are copyright versions, but you cannot copyright the tune itself if you did not write it.

I'm not against ASCAP and BMI enforcing copyright, but there are too many situations, both here and in the UK, where the enforcing agencies have no idea that ANY tune could be in the public domain.

compmd 8 years, 4 months ago

anon1958, you fail to realize the exact problem with ASCAP.


"...the bar would have to pay licensing fees if it wanted to continue hosting live music, unless it could prove that no copyrighted material would ever be performed."

ASCAP believes they represent all artists and they must enforce all performance. If you have a band play a song that they own the rights to in your bar, ASCAP still comes after you. I'm not kidding, you should really do your homework on this. The way these goons (and their brothers in crime the RIAA, MPAA, and BMI) operate has been challenged constantly in the courts; you are assumed to owe them unless you can pull out a fscking magic crystal ball to see into the future and prove otherwise. To go from civil law to criminal, why don't we just imprison random people because they can't prove that at no time in the future will they violate the law?

frank mcguinness 8 years, 4 months ago

"I would be honored to hear people covering my songs onstage."

Until your music is commercially viable and then you'll be saying "show me the money."

jumpin_catfish 8 years, 4 months ago

Does anyone ever wonder what the world will be like 50, 100, or 500 years from now?

randysavage 8 years, 4 months ago

The 3rd weekend of September can't come soon enough...

anon1958 8 years, 4 months ago

efender (Anonymous) says…

anon1958 has as little class as ASCAP.

Sorry, but you're a first class moron.

Well sticks and stones lol. You really need to try harder if you expect to even annoy me. If this is the best you can do you have as much hope of winning a flame fest against me as a children's party balloon has hope of defeating a porcupine.

The copyright and intellectual property issues discussed here have important consequences that are far reaching and travel light years beyond the boundaries of popular entertainment.

AnnaUndercover 8 years, 4 months ago

@anon1958 "You really need to try harder if you expect to even annoy me."

It's clear that your feathers are ruffled. :)

Adam P Atterson 8 years, 4 months ago

where does the burden of proof truly lie? Why doesn't ASCAP have to prove an infringement actually happened before they send cease and desist letters? anon1958, you got all the answers, do tell.

topekan7 8 years, 4 months ago

... another lame-assed posed photo in the LJWorld. Where did these so-called journalists go to school???

heybluekc 8 years, 4 months ago


Then dont read our paper. Read your Capital Journal.

RKLOG 8 years, 4 months ago

Ascap are thugs and anon1958 is an idiot. There we go, 2 birds with one stone. I'm done.

gccs14r 8 years, 4 months ago

BTDT, dealing with ASCAP. They were rather insistent that we owed them money for our "hold" music on our phone system. When that didn't work out for them (hold music licensed from someone else in perpetuity for a whopping $100), they then tried to extort money for any music we might play at company gatherings. (Never mind that professional DJ outfits are already licensed, so there's no need for us to pay ASCAP, too.) They finally went away, after offering a vague threat of unannounced site visits and dire consequences for being caught with unlicensed material.

AnnaUndercover 8 years, 4 months ago

@gccs14r They're pirates. All they need is eye patches and plastic swords.

Darrell Lea 8 years, 4 months ago

I've been performing music in public here in Lawrence and the surrounding area for over thirty years. The story about ASCAP and music licensing is an old one, and things like this have happened in the area for many years. It's about time this discussion happened in public.

Both sides of the discussion have some merit, but in my opinion one eventually needs to side with the copyright holder of any valuable intellectual property.

Many venues that present live music in this city pay the annual licensing fee. The Bottleneck, The Jazzhaus, The Granada, The Replay Lounge, Jackpot Music Hall, etc.., all pay, or else they wouldn't be in business. Is it right for one business to have an unfair financial advantage by not paying what the other guys are?

If you're going to play, you ought to pay. Create some value in your product and then take it to the next level, rather than try to do things on the cheap and on the sly.

jwalter 8 years, 4 months ago

Dear gccs14r -- It is not true that DJs are licensed to publicly perform copyrighted music in public. I don't know for sure about ASCAP, but I am absolutely certain that BMI doesn't license DJ's, musicians or other performers to play music in public. BMI doesn't even have such a license to offer at present. The venue is always held responsible for music licensing. The confusion about DJ's usually arises because DJ's use may use tracks on which mechanical licenses have been paid, and the DJ may tell the business owner that he is "fully licensed.". The term "mechanicals" refers to the license that allows one to reproduce and/or distribute a song. The "performance" license and royalty is a seperate use under copyright law, and the performing right organizations hold the venues responsible for that, even though they could sue everyone involved in the performance. On another matter, the performing right organizations would never sue an establishment unless they had absolute proof of copyright infringment. It would be a waste of money. That's why these organizations almost never lose a case, and that's why probably 95% of their lawsuits are settled before going to trial. The PRO's have been filing these lawsuits for decades, and they know the process intimately. What they are doing goes all the way back to a Supreme Court decision in 1917 called Herbert vs. Shanley. The Court ruled that a restaurant music pay songwriters even if the restaurant doesn't charge for the music. If you don't believe me, look it up or discuss with a copyright attorney. These organizations generally have the law on their side, and they know the law because they employ so many expert copyright attorneys. While some of you would like to consider the PRO's obsolete, their revenues have continued to increase year after year, and there's little chance they are going away. They serve an important purpose for radio and TV stations, and many business owners -- and the songwriters and composers who write commercially successful songs. They make obtaining permission to play copyrighted music easier and cheaper than if every business had to license every song from every songwriter. It obviously annoys some business owners that ASCAP and BMI tend to assume you're playing copyrighted music, but when you consider that they license 97% of the music played in the U.S., perhaps you can understand what they're thinking when they contact you.

WubblesMcTrub 8 years, 4 months ago

Jwalter - I think you are missing the point here. The licensing fees collected by ASCAP and similar organizations are never reaching the artists that are being covered in this situation. The vast majority of the money goes to the operation of these organizations. The money that does reach artists (or more likely record execs and other snakes in suits) is distributed based on record sales and radio play. So Bill Monroe (in this case his estate) and Earl Scruggs see very little of this money, while commercial artists get richer. Speaking of Bill Monroe, you should know that he didn't write all of those "Bill Monroe Songs." He was a shrewd business man and took advantage of the nascent copyrighting industry. He bought songs (for essentially nothing) from other writers, put his name on them and collected the royalties for years. He also stole songs from his bandmembers and put his name on those as well, while the true authors have been relegated to obscurity. Not to mention all the traditional songs that he put his name on. You are correct, most venues pay the licensing fees and are still able to make live music economically feasible. But you have to understand how ASCAP determines the amount of fees that are owed. They have two catergories: venues who have 3 nights of music a week (or less) and venues who have 4-7 nights of music. Then they take the maximum occupancy of the bar and mulitply it by the hours open. Dempsey's had only one night of music and is open at 11am to 2pm. So Dempsey's would have to pay for all those open hours where no music was played. The fees would have been totally disproportianate. Not to mention they are already paying ASCAP for their jukebox. Which was off when music was being played. Double Jeopardy!

Gareth - You are right, Dempsey's probably could have fought this, but the fact is they didn't really care. The music wasn't making them much extra money, and any image enhancement they recieved was completely unrecognized. These are the same folks that own Quintons, just a bunch of Doug Comptons dogs. Also, they've got Krause's burgers now. Burgers are more profitable and have a wider appeal than bluegrass music.

In the end there are a lot of issues here. As always, nothing is black and white; learn to think with some nuance people! The whole story is far more complicated and sordid than you know.

Eric Ryan 8 years, 4 months ago

Guitarzan - while I agree, in general, that a venue hosting a "band" ought to pay ASCAP or BMI for a license, the entire article is about tradional music sessions.

A trad session (be it Bluegrass, Old Time American Music, Irish or Scottish) is simply a bunch of friends getting together and playing. Often, these sessions occur on porches or at private homes, but when the number of players increases you usually need space. Bars or coffee shops often have dead times when the musicians can come in and play and not negatively impact their routine business. Trad players like such venues - beer and/or coffee are nice to have on hand when playing. They're not paid (that's not the point) and they're not playing to attract a crowd.

It's a musical conversation amongst friends. If people sit and listen, that's great. If people ask questions and eventually start showing up to play and learn the tradition, well, that's what it's really all about - passing on a living musical tradition.

The difference between a true performance and the nature of a trad session is what ASCAP and other licensing organizations do not understand. Plus, they really have no concept of public domain folk music. 97%, as quoted above, is simply not fact. The number of songs and tunes written before intellectual property rights were established far outnumber the number of licensed pieces of music. My guess is that 97% represents the percentage of new music licensed these days.

Darrell Lea 8 years, 4 months ago

FluteinD - just to be sure, I went back and re-read the article. It's about music licensing and public performance. The concept of traditional public domain music isn't even presented in context until paragraph 12.

I've played a lot of trad sessions around here in my day. I'll bet if we were using our real names in this discussion we'd find out that we know each other.

Anyway, I stand by my previous statements. Thanks for writing.

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