The Real Paul Jones

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Nine words of Wisdom on karaoke

I talked for a long time with News and Observer reporters about copyright, ASCAP, and karaoke performances in local bars. Of course it’s not only about karaoke; it’s about all performance of the works of artists, composers and publishers represented by ASCAP. Any how, I got nine words into print edgewise: “The law is about performance rights for the creators,” but also read it in context here. Yes, it’s about more than that. I know. I said more.
I applaud The Cave in Chapel Hill for their sign and their policy “Attention all musicians: No cover songs. Original music only.”


  1. You’re right – it’s about paying the creators for using their work to make money. I presume that Cody’s pays their electric bill for the use of lights in the bar while the karaoke is taking place, and pays their drink suppliers for the liquids consumed. Why not pay songwriters for the use of their work? Cody’s profits from having people come in and sing other people’s songs – it’s why they do it. They should share those profits by paying for the labor of those who created the songs, just as they pay their bartenders and waiters for working while it’s going on.

    Not so sure about the Cave’s policy. While it does encourage original music – and that’s a good thing – it’s also a fairly thin-pocket, mean-spirited policy to boycott works by other songwriters, presumably just to avoid paying the license fees. It’s just a part of doing business.

  2. Paul

    8/6/2007 at 8:03 am

    Almost right. Creators rarely own and control the works in question. Most give up 50% or more to the publishing company immediately and additional percentages to their labels. Creators are held up as the face of ownership and of moral standing, but only as the face. The purse is being filled elsewhere.

    But wait, that’s not all. Whether anyone involved at the unlicensed performance makes a profit or takes in any moneys at all is not germane to the question of performance rights. You pay to perform — profit or no. Profit and possible market damage can be considered in the remedy stage but that is not part of question of licensing.

  3. Technically, right on both counts. Then again, songwriters voluntarily _assign_ half of their works to the publisher to gain something in return. Once again, it’s ultimately under their control (at least, until they sign a publishing contract) even if they choose not to keep all the money. Seems to me it shouldn’t matter to us who gets the money (at least, not to those who resist paying) because a songwriter can always opt to do their own publishing, as many do. But you’re correct that frequently the royalties are split.

    We encounter resistance sometimes because of the generally negative view people have of the performance rights organizations (PROs) – places refuse to buy licenses because they don’t think the songwriters and publishers actually get their fair share of the proceeds. But one has to point out that no copyright holder is compelled to sign with a PRO – each songwriter and publisher voluntarily affiliates with the PRO they think will do the best job of collecting their royalties and designates the PRO as their collection agent. It’s their choice, not ours, whether they get a reasonable deal from their PRO.

    You are also correct that making a profit isn’t the definitive factor – it’s the performance (actually, it’s _public_ performance). I should probably have more specifically said that it’s the intent to profit . I’ve run into the same issue with licensing for places that host jam sessions. “Why should we pay when we’re just making a place available for people to come share music?” Well, why not host it in your living room instead of in your bar? The answer is that you do this in a bar in hopes of attracting customers. Whether than actually works or not is irrelevant – it’s that the performance is in public, not in private.

    I’m waiting for a bar owner someday to tell us that the electric company donates the power he uses while the jam session is going on.

  4. Paul

    8/6/2007 at 12:48 pm

    I won’t spend the time here to talk about the metaphoric failures of the property metaphor that you seem to accept so uncritically. A song is not a chair. Nor is this note. Especially folks playing traditional music such as bluegrass are on very weak ground as far as claims of originality go. In fact there is a lot of evidence that innovation and creativity as more stiffled than rewarded by the present system.

    Check out the various arguments in Lessig’s Free Culture. You can buy it online, at a bookstore or you can download it for free.

  5. Yes indeed, as far as claims of originality go, particularly as related to traditional music. But labor is labor, whether building a house or writing a song. Those who labor deserve to have control over how the product of their labor is used. I don’t claim the current system is optimal, or even fair. But any system which allows appropriation of someone’s efforts without permission and without compensation is even worse than what we have now. There’s no inherent right to be compensated for our labor, but clearly there _is_ a fundamental right to be compensated for the _use_ of our labor.

    I fully agree that there are any number of ways songwriter (or, more properly, copyright owners) can make use of the songs they create – some far better than the current system. Nonetheless, it’s their choice how to take advantage of it, not ours. Frustrating as it might be, they have to be free to make their own decisions, regardless of whether _we_ think it’s to their advantage or not. I’d be hard-pressed to think of a more fundamental principle of freedom than the freedom to make bad decisions.

  6. Paul

    8/7/2007 at 5:28 am

    Actually labor or how hard you work on something is not a consideration in copyright law. You may think you have a moral right because of the “sweat of your brow” but you do not. Copyright is given for the fixed expression of an original idea. An easy to do fixed expression of an idea — although not an obvious one — is as protected as strongly as a difficult fixed expression of an idea.

    Further evidence shows that those who labor in music rarely benefit. Those who invest do.

    What system are you comparing the current systems to, BTW? How can it be better?

  7. Copyright law doesn’t actually consider labor, but morality does. The moral right is to be able to exploit the fruits of your labor yourself, not to have someone else appropriate it for their benefit without compensation for the use.

    No argument that those who labor in music rarely benefit. There’s no worldly imperative that the world beat a path to your door to recognize your genius and compensate you for it. More than once I’ve counseled musician friends that they get to play the music they want to play and don’t complain about not making money, or earn money playing someone else’s music and don’t complain about not playing what you want. It’s not ideal, but it’s how the business works for most musicians.

    The only thing I was comparing the current system to was the one the original karaoke article uses – using the music for public performance with no compensation. Lots of alternatives would be better – a more fine-grained approach to royalties and uses that the current blunt instrument of copyright law, for example. Creative Commons is a good example, from what I’ve seen.

    The hardest part of any alternative is actually collecting the money and distributing it. Pretty clearly, no songwriter or publisher can easily track usage world-wide, and no one using the materials can pay multiple claimants, so it seems to me that whatever system one might envision has to necessarily involve some level of centralization and that, of course, lends itself to the potential or perception of abuse.

    The system for mechanical royalties seems to work pretty well. Or maybe it’s just that we’ve gotten used to it over time, but for both producers and consumers of music, it’s well-established and fairly seamless. Tracking uses is getting better, too. ASCAP has a couple of innovative projects in place – one samples over-the-air broadcasts and uses recognition software to ID music tracks and commercials, thereby providing real ground-truth for what’s actually getting played rather than statistical sampling techniques. They also have a program by which artists can submit lists of songs they actually played in performance and ASCAP will make the appropriate direct payments to the songwriters and publishers, rather than relying on estimates (a good thing for songwriters since songs played in live performances are seriously undersampled).

    Performance royalties are harder because public performances can break out darn near anywhere (“Look, Maude – that guy’s playing some music!”). Personally, I’d like to see a major overhaul of mechanical and performance licenses as regards podcasts – a place where music is seriously under-represented because the costs get very high very quickly. I’d like to see SoundExchange given significant incentives to actually locate and pay performers – turns out currently that if they can’t “find” someone to make a payment, they get to keep the money they’ve collected. That ain’t right. And the travails of webcasting are well-known.

    Thanks for the discussion, Paul. It’s a fascinating and tangled mess.

  8. Paul

    8/7/2007 at 9:33 am

    There is no consideration of a moral right in US Copyright Law. Pursuing that argument might make you feel somehow correct but it will take you nowhere.

    Secondly, what is yours? What have you built from others? This test of uniqueness wearied Jefferson and he was much smarter than I. He was loath to award pattents, as our first Secretary of State that was part of his role. he openly doubted the utility of copyright as being of any use to creators in the long run.

    On SoundExchange, I am waiting without much expectation of reward to see any musician show a check received for any amount worth noting. Not a recording company, not a publisher, not any other owner of the works of others, but an actual creator. SoundExchange’s major function has been to limit venues in which music can be distributed but pricing players out of the market or forcing them to act extralegally. I’d like to see other evidence, but so far it’s not there.

  9. So from waht ive read, you bascially can never do any cover songs, even if you don’t make any money out of it, without paying ASCAP or whatever? It seems pretty ridiculous to me. How many times can we re-phrase the same message? Why don’t you go ahead and extend copyright to chord progressions (somebody out there have the copyright on 1-4-5???).

    I think its flattering to musicians to have an amateur on open mic night cover thier songs, if the songs are from a mega star or a retired musician. At some point, you will not be able to sing anything at all in english, as every good possible set of words will be copyrighted, and then truly lyrical music will be dead.

    In fact, I could go and write a humongous song, and copyright 100000 phrases, and then nobody could ever sing those phrases again without kicking me down some cash. “wait a minute, that guy just sang phrase number 84322, he’s in big trouble”.

    Its no wonder we have a slew of horrible songs out there when you can’t actaully perform established good songs. I guess I’ll just stick to traditional songs where copyright has expired or never existed, but oh wait, be careful because you can copyright an “arrangement”.

    I can understand if you wanted to actaully record the performance and distribute it, that i understand, but who cares about some amateur singing a Beatles song at opn mic night.

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