BROOKINGS – There’s money to be made in music. By the artists who create and perform it and by companies making sure it isn’t played by other performers in violation of copyright laws – unless those performers hold licenses issued by them.
Called “performing rights organizations,” these companies include the big three: Broadcast Music Inc. (BMI); the American Society of Composers, Authors and Publishers (ASCAP); and the Society of European Stage Authors and Composers (SESAC).
Caught up here in the licensing maelstrom have been local proprietors offering live music or entertainment, including Music on Main hosted by Nick’s Hamburger Shop and open mic nights at Cottonwood Coffee and Wooden Legs Brewing Co. All three events have been discontinued because of the prohibitive cost of licensing.
Several other Brookings establishments had already stopped or decided not to have local entertainers perform for fear of running afoul of copyright laws by using “cover band” music.
“So the issue is it’s not even having to pay one. You really have to cover all three,” said Rachel Reed, general manager of Cottonwood Coffee in downtown Brookings. “And even then you just have to hope that they cover the artist.
“If you’re going to put music on, can you really go and look through hundreds of thousands of artists to make sure that that is one that you’re allowed to play? We’ve always had the issue with (live) music playing here, so we pay for our (radio) music.”
No more Music on Main
“We would love to have Music on Main around forever,” said Todd Fergen, owner and operator of Nick’s Hamburger Shop in downtown Brookings and sponsor of Music on Main. “It’s become a little more of an issue for us on the bad side. You know of course we don’t do Music on Main to make any sort of a profit at all.
“It’s just flat out an extra expense for us, extra time for employees, a little extra expense.”
Fergen explained that Music on Main was started about five or six years ago by his father, the late Dick Fergen, “to try to give back to the community, which I would love to follow.”
The performances by local talent were held Wednesday evenings for the three or four months during the warmer part of the year. A good-sized crowd might be a hundred people. An average crowd was about 60 to 70 people.
“It’s very low key,” Fergen explained. “We really don’t hire at all. These people do most everything, volunteering. They would like to play for the community. It’s a good chance for them to practice, get a little exposure perhaps.”
He added that people would bring out their lawn chairs and relax in the shade under the tents next to Nick’s and “have some ice water, soda pop, maybe even some ice cream.”
Fergen said he, the audience and the performers all enjoyed it. And Nick’s was open for an extra hour on those evenings.
The entertainers were mostly area amateurs. Occasionally, a performer came from as far away as Mitchell.
“Sometimes it’s just a single individual,” Fergen said, with a laugh adding, “It might just be Becky Sue from the south-40 out Rutland way. Been strumming her ukulele for years and got quite good at it. We do have one gal like that and she’s wonderful to listen to.
“The crowd loves it. They love to see local talent. We’re a close-knit community. There’s always somebody who knows somebody who’s up there.
“They love to give them the support and we love to see it. And we’d like to keep doing it.”
Phone calls, letters, threats
Then about a year-and-a-half ago, BMI came on the scene.
“I think it started with a phone call or a letter and then they advised us to call them,” Fergen said.
Near the end of summer 2017, BMI initiated correspondence with Fergen, asking if he was still having Music on Main performances. He was queried as to whose music his performers used: original or others.
He said his performers didn’t use only their own material; maybe a quarter to a half was home grown and original.
About August 2017, Fergen was called and offered “a cut-rate deal … a little discount” for a license.
“I was quoted once $180.” Back-and-forth talk between Fergen and BMI went on for about a month and a half.
He found contacting BMI via phone to be difficult and frustrating.
“It takes forever to get ahold of these people. I ended up talking to at least four different people at different times whether I asked for that person or not.”
Fergen said he did pay for a past license; however, he advised BMI that he was discontinuing Music on Main and would do no further business with the company.
Then came a letter, dated Oct. 31, 2017, from a BMI attorney with a contract offering a license for June 2017 through May 2018. Also enclosed was a brochure: “The Legal Aspects of Performing Copyrighted Music.”
The letter closed with: “The public performance of BMI music without proper authorization constitutes copyright infringement and may result in substantial damages under the Federal Copyright Law.”
BMI letters dated Jan. 2 and Feb. 7, 2018, again billed Fergen. He didn’t pay either. He did call BMI and spoke to Heather, who said she would investigate the issue and call him.
Then within the past several days Fergen was advised by BMI that his account shows a zero balance.
Additionally The Brookings Register received an email on Tuesday from Jodie Thomas, BMI executive director for corporate communications and media relations, noting that Nick’s Hamburger Shop is “currently licensed with BMI through January 2018, so their Music on Main event would be covered through the BMI license they currently have in place.”
That, however, is a moot point; Music on Main is gone, and Fergen has no need for a license from BMI or any other performing rights organization.
Thomas’s email also read, “We never want to see the music go away, which is why we work hard to educate business owners about the value that music brings to their establishment, the requirements of copyright law, and the importance of maintaining a music license.”
No more open mic
Like Fergen, Jacob Limmer, owner of Cottonwood Coffee, is familiar with the big three performing rights organizations.
“You need to be paying all the organizations to be free from violating copyright laws,” Limmer said. The other way is to play all original music. But should the band or performer use a “cover band” piece, it’s the establishment owner who is responsible for the copyright violation.
“The problem with copyright law, these licensing companies have managed to make it so that the law would be applicable to the venue and not the artist,” Limmer explained. “So if Joe Smith comes in and plays a cover of Tom Petty songs, that’s a violation of copyright law and the offender is me – the venue, not Joe Smith the artist.
“The companies are smart enough to know that Joe Smith is gone but I am the brick-and-mortar that they can come after.”
One question The Brookings Register asked was how does a big performing rights organization like BMI find out about local entertainment playing gigs at Brookings small-time venues?
BMI would not reveal its sources, Fergen said.
In her email to the Register, Thomas said, “We often find out that copyrighted music is being performed because some businesses advertise music or charge entrance fees for having music on site. If a business doesn’t have a music license already in place, we try to work with those business owners to ensure that they are protected.”
But business owners say the discovery of venues that play live music leads to phone calls, letters and threats. Then comes the offered contract that will put any copyright issues to rest.
But are the performing rights organizations bluffing when they talk of legal action against what they perceive as copyright violation? Limmer doesn’t think so.
“I think they openly admit they will make an example out of you,” he said. “And they do that.”
There are multiple examples in online news stories of how the big three performing rights organizations have applied pressure that led to the shutdown of many local music venues around the nation.
And what’s the final fallout here?
“Brookings has a reputation for not having any live music,” Limmer said. “It’s incredibly rare that we have live music anymore. That’s something that’s changed just in the little over a decade that I’ve been here.”
In her email to the Register, Thomas said BMI is simply protecting the musicians it represents.
“The majority of our songwriters can be viewed as small business owners who depend on the royalty payments they receive from BMI to make a living and continue their craft. As a performing rights organization, it is BMI’s mission to work on behalf of our affiliates to make sure that they are fairly compensated whenever their music is played or performed in a public place,” Thomas wrote.
“All songwriters deserve to be fairly compensated for their work, regardless if they’re established icons, unknown songwriters or somewhere in-between and collecting music license fees helps all songwriters.
“BMI operates on a non-profit making basis, returning approximately 88 percent of all revenue to our songwriters, composers and publishers in the form of music royalties.”
Contact John Kubal at firstname.lastname@example.org.
Courtesy photo: On a warm summer Wednesday, Brookings area residents gather for Music on Main, downtown near Nick’s Hamburger Shop. Todd Fergen, owner and operator of Nick’s, said that because of the prohibitive cost of licensing, the live local entertainment will not be returning. Music on Main was started by Fergen’s father, the late Dick Fergen, about five or six years ago.