8150 Lawsuit Foments Intense Copyright Discussion

copyright.gifMy recent Local Rhythms post on the legal action taken against Vail’s 8150 club has generated a surprising amount of feedback. Most responses side with the artists, and many of them are factually false. It’s a very interesting discussion, and after stripping the lies away (the bands aren’t getting sued, the club is; Zeppelin members are signed as plaintiffs, so their names aren’t being used by the Vail Daily simply to get attention for a sympathetic scofflaw), many good points are made.

I should point out some facts left out of my article. There are two types of cover bands. One inserts a favorite song into a set of originals, or more to the point, learns how to shape originals by playing a variety of music from artists they enjoy. Sometimes this is an icebreaker for groups who have their own material but are too self-conscious to play it for a strange audience.

Monetizing the music they play would, in my opinion, destroy a lot of bands who typically get paid little or nothing to perform in the first place. There’s a great discussion going on at coverville.com that addresses this situation quite cogently. I’ll repeat one of the better posts here:

I’m in a band. A cover band. And in my home town of Ottawa, Canada, 90% of bands are cover bands. I can only imagine what it’s like for the rest of the world.

If the nightclub recorded the bands and made money with the recordings, that’s a different story. It’s copyright infringement since it lessens the commercial value of the original songs — by stealing money away from the creator.

But if it’s not, this falls under “fair use” of the copyright law. And I would even add that, the money the club owner makes is not from covers being played (which probably is the argument, here), since they are providing services, atmosphere, location, etc.

They are paying the bands to perform. Bands should be the ones held liable, not the club owners. And even then, I believe they shouldn’t. Do bookstores pay licenses for people coming into their stores only to sit down at the coffee shop and read books for free? I mean, they provide the location, amenities, and even a good crowd. Or what about a book review in a magazine read in said bookstores? What about music playing over the sound system playing at the music while they’re reading?

I’m not a intellectual property lawyer by any stretch, but as a writer myself, I know enough of the law to know this to be true in most cases.

This is going to turn out like the whole Metallica/Napster fiasco. And as we know, this didn’t stop anything.

Admittedly, this situation is different. Or is it? Labels attempt to intimidate their fans. In this case, clubs, bars and restaurants who hire cover bands will suffer the brunt of a decline in clientele when they are forced to hire original acts — unknown, or expensive (if popular), original acts.

The nightclub owner is not the ones who suffers. Again, it’s the fans. And it’s a tragedy.

Nevertheless, this is setting a dangerous precedent and bands will be facing a monumental task if they were to clamp down on every club with cover bands. And it’s not great marketing, either. You hear a song from a cover band at a club, you’ll be tempted to buy the original — or the album where licenses ARE paid to the original creators/labels.

Again, an egg-and-chicken dilemma.

On the other hand, there are bands like Lez Zeppelin, Hell’s Belles and Rain that ape famous bands like Led Zep, AC/DC and the Beatles – and make a lot of money in the process. Those are the groups ASCAP should be going after.

Because I write about a local music scene with many aspiring bands who have day jobs, and club owners who are sympathetic to them, I tend to side with the underdog. ASCAP isn’t a saintly organization, fearlessly representing defenseless artists. How many performers even own the publishing rights to their songs? The stories of ASCAP’s predatory practices are legion on my beat.

Radio’s ability to break new music has faded; fewer stations even play music anymore. Those fields are fallow, so ASCAP has ramped up nightclub enforcement. When I worked in radio, we lived in dread of receiving the ASCAP diary. Station management went so far as to try and ban their songs whenever possible during the recording period. But they always got their money, because the law was on their side.

Now it’s bars and restaurants on the receiving end of this treatment. If it causes nascent musicians to put down their axes before they even begin, that’s a bad thing.

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