Organizations like ASCAP, BMI and SESAC say their mission is to protect the work of music creators, but local musicians and venues say they’re crushing the Seacoast scene with exorbitant fees and rigid enforcement

The Tavern at River’s Edge is not a music venue. The bar and restaurant in downtown Exeter hosts just a handful of special events each year. Owner Jeffrey Roth said he likes to put on an occasional concert—maybe three or four per year—to enhance the normally lackluster nightlife in Exeter. Among his annual events is a fundraiser for Toys for Tots held in December, featuring music from local band Truffle.

Last year, the fundraiser almost didn’t happen. Roth said he was contacted by a representative from the American Society of Composers, Authors and Publishers, better known by its acronym of ASCAP, who wanted to charge the business somewhere between $1,500 and $2,000 for a music license. When Roth protested that his business is not a music venue, the representative cited the Truffle show. 

“They clearly told me that if (Truffle) play(s) any songs that are not their own, I could be fined,” Roth said.

He contacted Truffle front man Dave Gerard, who agreed to play only the band’s own original songs during the concert and not play any covers. But the ASCAP rep was unconvinced. “They weren’t buying it,” Roth said.

Nevertheless, Roth refused to pay and went forward with the concert, during which Truffle culled through tunes from its original repertoire. They’re planning another Toys for Tots benefit this December, again featuring acoustic Truffle. Roth won’t be surprised if he gets another call from ASCAP soon.

“They bug me every year about licensing,” he said. “It’s just like this little game we play. It kills me that ASCAP would try to stop a Toys for Tots benefit.”

Although ASCAP hasn’t deterred Roth from hosting his annual fundraiser, it has prevented him from offering more frequent music, and it has made other Seacoast businesses reluctant to host live bands, as well. While the organization and its two competitors serve the important function of protecting copyrighted music, many local musicians and club owners accuse them of charging exorbitant fees and using unethical tactics. They say ASCAP and its counterparts damage the local music scene and hurt working musicians while rich and famous stars reap the benefits. And they say things are getting worse.

ASCAP is one of three major “performance rights organizations” in the United States that charge music licensing fees on businesses. The other two are Broadcast Music Inc. (BMI) and the Society of European Stage Authors & Composers (SESAC). Any business—whether they host live bands, play CDs, have a jukebox or, in some cases, turn on the radio—must pay all three organizations or risk facing large fines and legal action.

Founded nearly a century ago, in 1914, ASCAP is a not-for-profit entity that licenses and distributes royalties for public performances of its members’ copyrighted works. Those members include more than 420,000 composers, songwriters, lyricists and music publishers of every genre, representing roughly 8.5 million songs.

BMI formed in 1939 and now represents some 7.5 million works from more than 500,000 artists, including everyone from Eric Clapton to Herbie Hancock, Michael Jackson to Elton John, Lady Gaga to Eminem. According to its website, BMI distributed close to $790 million in royalties to its members in the 2010 fiscal year.

SESAC, the smallest of the three organizations, was founded in 1930 with the aim of serving underrepresented European composers. Their influence did not become widespread until the early 1990s when Bob Dylan and Neil Diamond signed up as members. They now also represent late bluesman Robert Johnson, Cassandra Wilson, Alan Parsons, Rush and others, making them too ubiquitous to ignore. 

Vincent Candilora, of ASCAP’s general licensing office, defended the organization’s mission, saying songwriters and composers have a right to be compensated for use of their creative material. 

“It’s no different than using anyone else’s property,” Candilora said. “If I wanted to use your car, I can’t just take it.”

Furthermore, Candilora said, the vast majority of ASCAP’s members are little known musicians who could otherwise have their music exploited. He pointed to the example of “The Gambler,” a song made famous by Kenny Rogers but written by lesser known country musician Don Schlitz, an ASCAP member.

“That’s how songwriters and composers make their living. Not everybody is Rob Thomas or Bruce Springsteen,” he said. “The majority of our members are people that you wouldn’t even recognize their names.”

But some local musicians say ASCAP’s system isn’t working for them. Local guitarist and nationally recognized musician Harvey Reid has long been an outspoken critic of ASCAP and BMI. He’s dubious of Candilora’s claim that they’re out to help the little guys.

“They rob from everyone and they give to a very few,” Reid said. “All of us rank and file musicians who are not Elton John or Billy Joel, a considerable amount of money is being essentially taken out of our pockets.”

That’s partly because ASCAP’s fees make it more difficult for local musicians to find paying gigs. What’s more, Reid said, all three organizations use a complicated and esoteric formula to determine how royalties are distributed, and rarely does much of the money fall in the hands of musicians who aren’t already successful. Reid registers his own CDs with BMI, which earns him “tens of dollars” every year.

“All of us shamelessly join and hope we get our little royalty checks, but we all feel it’s unfortunate that we’re stuck with this system,” he said.

Candilora said royalty distribution is based on a number of surveys and censuses that ASCAP conducts. ASCAP co-owns a company called Mediaguide, which monitors airplay at about 2,700 radio stations around the country.

“We know of every play on every one of those radio stations. We kind of use that as a proxy for what’s going on in terms of popular music at clubs and restaurants,” Candilora said. “It’s a very, very extensive survey so that we can distribute the royalties very accurately.”

ASCAP is equally vigilant about making sure businesses that play music pay up. The organization has a field staff with 35 regional teams spread across the country. They scour the Internet looking for new businesses and check bands’ websites to see where they’re performing. They check state records on businesses that have been issued an alcohol license and then find out if they offer music.

They also pay informants who are not employees to do “prospecting,” as Candilora called it. College students or others looking to make some extra money will submit the names of establishments in their communities that play music (Reid and others say they’re aware of some of these informants on the Seacoast). 

Once they’ve identified a business that is not licensed, the ASCAP reps send a series of letters explaining what the organization does.

“We educate them in terms of the copyright law and what the obligations are for using somebody else’s property, namely, the musical composition that is owned by us,” Candilora said.

They follow up the letters with phone calls, and, if the business still does not cooperate, an agency representative will show up at the door.

That’s what happened at The Dolphin Striker in Portsmouth several years ago. Ray Brandin, who books music seven nights a week in the Striker’s downstairs bar, the Spring Hill Tavern, said the restaurant owner had been paying ASCAP and BMI but initially avoided paying SESAC. That became increasingly difficult.

“It became impossible to avoid issues with that company, because sooner or later somebody’s going to sing a Bob Dylan song or a Bob Dylan song’s going to end up on the radio,” Brandin said. 

One day, an out-of-town woman arrived at the bar. “(She) came in, had dinner, listened to live music, hung out, and then presented herself as a SESAC representative,” he said. “She and our owner went out and had lunch the next day and they decided on an amicable agreement as far as the back pay and that kind of thing.”

Brandin estimates the fine was around $1,200. On top of that, the Dolphin Striker had to purchase a license from SESAC. Combined with the ASCAP and BMI licenses, Brandin estimates they pay between $2,500 and $3,000 per year.

A similar situation arose at The Governor’s Inn in Rochester, which hosts a live outdoor music series in the summer. When he started the series several years ago, owner Herman Ejarque was surprised to learn he owed money to three different organizations.

“We’ve been doing our music series for a number of years and we didn’t get our license right away,” Ejarque said. “When they filled us in on the whole process, we had to pay some back fees.”

Not every local establishment is willing to swallow the cost of the license fees. Dave Gerard, the singer and guitarist for Truffle, said he used to play in a live music series at the River House in Portsmouth. The restaurant, which opened in 2009, began hosting small, acoustic groups a few nights a week. The series ended when ASCAP and BMI started badgering owner Peter Labrie about acquiring a license, according to Gerard (Labrie declined to comment on the matter). 

“They came down on him so hard and hassled him so much, he just said, ‘Forget about it, it’s not worth it,’” Gerard said. “It was a shame, because we were building up a nice little thing there.”

Candilora contests the notion that ASCAP’s licensing fees are high enough to prevent businesses from hosting music. For an average business, he said, the license only amounts to a few dollars a day.

“I mean, how prohibitive can that be?” he said. “I don’t think anybody can say that our fees are prohibitive for people to use. I think it’s a very easy excuse as to why people aren’t particularly going to hire local musicians.”

As of 2010, ASCAP’s base rate for a venue with a capacity between 151 and 225 people that hosts live bands between four and seven nights a week was $1,490. The agency measures capacity not by the number of seats, but by the total allowable occupancy under the fire code. At the River House, that means the capacity includes both floors of the restaurant and the outdoor deck, even though music was only performed in the downstairs bar area, Gerard said. 

“Really, we were playing to 50 people at best,” he said.

Some venues have learned the hard way that it’s not worth trying to fight ASCAP. The Press Room in Portsmouth, which has a capacity of close to 200 people and hosts live music seven nights a week, pays licensing fees to ASCAP, BMI and SESAC. According to manager Bruce Pingree, former owner Jay Smith refused to pay during the late 1980s or early ’90s, arguing that he mostly hosted small local bands that played original or traditional music. He gave up his rebellion after ASCAP dragged him to court and slapped him with a hefty fine.

“They’ll come after you. They’ve come after us at one time or another and they still hound us for money,” Pingree said.

ASCAP filed an infringement action against Ron’s Landing in Hampton in June 2010, along with 20 other nightclubs, bars and restaurants in 13 states. Accused of playing just four copyrighted songs, Ron’s settled out of court. The Portsmouth Herald reported in April 2011 that Ron’s Landing paid $8,500 in fees (though the restaurant owner declined to discuss the case with The Wire and would not confirm the $8,500 figure).

According to Harvey Reid, performance rights organizations have been cracking down harder in recent years as the music industry has faltered. They “behave like the mafia,” he said, going after every business that so much as plays a Christmas CD.

“Everybody’s squeezing every income source they can find harder than ever,” Reid said. “It really seems like there’s an uptick in the enforcement of this kind of thing.”

Reid authored a lengthy essay in 1993 titled “ASCAP & BMI—Protectors of Artists or Shadowy Thieves?” He’s updated it several times on his website, www.woodpecker.com (under the tab “Articles & Essays). It’s gotten thousands of hits over the years, he said, reflecting musicians’ growing interest in the topic. Currently, though, there’s no reliable way around the system.

“There’s really not much anybody can do. It’s amazing what a tangled web they’ve woven,” Reid said. “I’d like to see a coalition of local artists to fill the restaurants with local music that we control and tell all these people to jump in a lake.”

Even vows to play all locally generated music would probably not appease the folks at ASCAP. Candilora said he is “highly skeptical” of venues that claim to present only musicians who play all their own songs and no covers.

“It’s pretty rare that that’s all that gets performed,” he said. “What happens when the band isn’t performing? Is there dead silence or are they playing recorded music?”

Candilora also takes issue with the contention that ASCAP is hurting musicians and music scenes. If businesses can’t pay the fees and still turn a profit on live music, the performers they’re booking might be to blame, he said.

“Maybe the bands aren’t that good. Maybe they’re not attracting customers into the establishments,” he said.

That comment probably wouldn’t sit well with hardworking and talented local musicians like Reid and Gerard. As music clubs grapple with the economy and compete with an ever-increasing wealth of home entertainment options, live music has become a tougher sell than ever before, regardless of how good the bands are. And, as the number of venues continues to shrink, so does the number of gigging musicians. 

“This is really crushing the limited venues that we have,” Gerard said. “It has definitely affected the musical community.”