Promoter 1: Has ASCAP attempted to address, you know, probably half of what's in bluegrass music is uncopyrighted, what we might call traditional music, public domain. Has ASCAP tried to address that issue? Like one thing I think of, what if I hire a group of native Americans to perform, do I have to pay an ASCAP licensing fee on traditional music?

RP: If you can substantiate your claim that no ASCAP music was performed, then you don't have to pay any royalties. There are two different forms of concert agreement. There is a Blanket concert agreement and there is a Per Concert license agreement. Under the Per Concert agreement, you would only pay for performances which contain ASCAP works.

Promoter 1: So if you could be assured of yourself that there were no ASCAP-licensed works being performed, then there's really, there's no need to pay ASCAP license.

RP: No. The most effective way to handle that situation would be, to be licensed by ASCAP on a Per Concert form of agreement. The fee is a little bit higher than the one I quoted here..., the Blanket, because there's more work involved with it for ASCAP. There's a little bit more work involved with it for the presenter or promoter also, because one of the requirements of the reporting provision of a Per Concert form of agreement is that you must supply a program or a listing of all of the songs that were performed at the event.

Promoter 1: You do it after the fact you mean?

RP: Um, yes, yes it is done after the fact. You report and advise us of each event 30 days in advance, but you don't have to give us the program, the list of works that were performed until, I believe it's one week after the event.

Promoter 1: So there is a way to address that.

RP: So there is a way to address that, still be licensed with ASCAP, and then only pay if the performance contained ASCAP works, and we will index that list, our index department will research it and we will get back with you and tell you what songs were in ASCAP's repertoire that were performed, and if there were none performed we will not collect any fees.

Promoter 1: Can you tell me how much the difference in price is...

RP: Fifty percent, it's 50% higher. So the the one I quoted you was $39, my math is terrible but it would be $39 plus half of $39 ...[$59].

Promoter 1: And if you found one ASCAP-licensed work, I would owe you that fee.

RP: That is correct.

Promoter 2: We cannot simply pay by the song, so much per each song?

RP: No. And you wouldn't, well, I know that you would like to, but if that was the case, the costs to ASCAP and then to you would be so much more, because if you paid by the song, then you would have to keep track again of every song that was performed...

Promoter 2: Couldn't you work out a rate schedule for bluegrass festivals like that, and, maybe put the burden of determining whether it's an ASCAP song on us, because since such a small percentage of songs in the bluegrass repertoire are ASCAP it would be easy to keep track of those songs relative to...

RP: No, it's not possible. Because then, you see the other thing that you have to get into and understand is that ASCAP operates under a Consent Decree from the federal courts...the Consent Decree which we operate under said that we have to treat all similarly situated licensees the same, so that we have to treat all people who promote musical concerts the same way, and what bluegrass festivals are is musical concerts, and that's why we have to use one of our concert forms of agreement, and the reason we can't do it per song is because it would just raise our costs so much that it would make our fees go off the wall for everyone.

LB: On these rates, again I come back to the same thing, why so many different billings and so forth. We have a member of our organization, they couldn't be here today because of medical reasons, they just recently, and they're from the state of Missouri, just recently made an agreement with ASCAP for a flat fee of $15 a day for their festivals.

RP: I would be interested to know who it is, especially if they're in the state of Missouri, because the agreement that they signed is probably this form of agreement ...[indicating a Blanket agreement]. If they believe that that is a flat fee form of agreement, they've been misled.

LB: Well, then they've been misled, because they certainly believe that it's a flat $15 a day.

RP: ...Or don't understand. Maybe it  is $15 a day, I don't know if there's a $15 a day rate on here, yes, if you look at an admission price of $0-$3 with capacity of 501-750, that would be $15.

LB: OK, yeah, I see that on the chart here...

RP:...and maybe they have, what has been presented to them is the fact that it would cost them $15 and they haven't taken into consideration or looked at the rest of the schedule to see the other factors that may become involved.

Promoter 2: That's certainly possible too if you have a $10 or $12 weekend pass and divide it up by 3 separate events, the admission for each one would be only $3-4.

RP: And what we would be interested in would only be the highest price of admission for each performance, so that if you have, let's say, 3 days like you said, and you charge $12 for the whole weekend, then it would be $4 a day, and it would probably be most accurate if you had a daily fee also. I don't know if you do, generally I think most of them do. Then we would use that one, whichever was the highest is the one that we would use.

Promoter 2: Could we find out all the songs in the ASCAP repertoire that would be bluegrass, and could we then just not play ASCAP songs? Can you explain why that wouldn't work; because then we could say sorry we don't owe ASCAP anything, we don't play their songs".

RP: It does work, it does work.

Promoter 2: How could we get a list of all the songs?

RP: Unfortunately because the repertoire changes daily, as new songs are added, as composers occasionally leave ASCAP and new members join ASCAP, the only way we can keep track of our list is a computer data base in New York. So the only way to really effectively do what you want to do is to send a list of the songs that you want to perform, and then we will send it to our index department, they will check it against the computer listing for that day, and then we will tell you what songs are in ASCAP's .repertoire And if any of them are, then...

Promoter 2: You couldn't cross-index by "Bluegrass" and then just download us a block of information that says as of April 20...

RP: We don't, it's not catalogued in that manner. It's not catalogued by a type of music per se.

Promoter 1: Is there any charge for that?

RP: No.

Promoter 3: Probably the way to go about that to minimize your risk is, over a period of time, is compile a list. Gather information, have all the promoters in advance send in songs that are known to be ASCAP songs and make that list public to all the entertainers that are playing at the festivals...

Promoter 2: What would be your reaction then if someone would say I'm sorry we don't owe you a fee because we don't play ASCAP music at this festival"?

RP: My reaction would be, how have you determined that you don't use any ASCAP music?

Promoter 2: And would that be a satisfactory method? What was just described?

Promoter 3: Well, one may fall through the cracks and you may not get `em all, but the odds of an agent being there and catching it, it just minimizes your risk of being cited.

RP: It just depends on what you want to do. If you want to take it from that standpoint, or if you want to take from the standpoint that the Copyright laws, the United States law that has to be obeyed and ASCAP is a good organization that works for its members and collects fees, and I want to pay what I owe. It just depends on how you...

Promoter 3: The other option possibly is to be fair about it and charge everybody 1% across the line. The guy that's got a $15,000 talent budget, he doesn't mind paying $150 because he can afford it. But what about this little promoter who's only got a $1500 talent budget, I mean he's not paid me the kind of money to pay you the fees that are set up, and I know BMI uses that rate. They use that 1% $150 minimum, and I think that would be fair across the board with everybody, from the little one all the way up to the big ones. I know if I got a talent cost, if I had a festival that had a $30,000 talent cost I wouldn't mind paying $300, it wouldn't bother me at all...

Promoter 2: What would be your reaction to doing like BMI does, and charging either $150 flat fee or 1% of talent cost?

RP: BMI and ASCAP are two separate and distinct organizations.

Promoter 2: Understood, right.

RP: ASCAP has its rate schedules and BMI has theirs.

Promoter 2: So there's no chance of changing?

RP: No, and it goes back again to the fact that if we changed it for bluegrass music concerts, then we would have to change it for every other concert promoter in the United States. And there just isn't enough motivation...

Promoter 2: I wonder how many people here have paid BMI but not ASCAP. There might be quite a few people here like that. Anybody wish to...well, I'm one of them, I'll say that.

RP: Fine...

Promoter 4:...I don't think there's a person in here that puts on a show, if they put on a show that's large, small or in between, wouldn't mind doing what's legally right. Giving back to the person who wrote it, trying to keep it within the family, but as Larry addressed earlier, maybe if there is a total of 260 songs played, maybe 5 at the most would be ASCAP material. And then if we end up having to pay $640, $130, $80 why not pay per song, we're paying $20 a song anyway! [laughter] The issue is, we understand your situation, but all circumstances are different. [Bluegrass] should be different because it is different: this is a niche music. It should be addressed
different.

RP: The  other alternative which you have, which you've just brought up and which honestly I didn't think to mention when we talking about alternatives, is that you can get permission directly from the copyright owner himself, and as long as you have that written permission from him that says you can use that music in that performance on that day and pay him whatever he feels is due, that is all the permission that you need.

Promoter 4: Get his signature for that and you'll be alright...

RP: As  long as he is the copyright owner. That's the main thing, not the band that performs it.

Promoter 4: A lot of the material performed [at bluegrass festivals] are original compositions, it's public domain material and, again, whether you catalog the songs or we catalog the songs, I think it would be really safe and honest that there wouldn't be more than your Orange Blossom Special, maybe Down Yonder, Fox on the Run, you cover four or five of those songs and that's it.... If there's any other form, I think everyone here would like to do what's legally right and hopefully get some dollars to people who have written that song, maybe given their life to the music, and now in their age and health to where they can't even support themselves, we would like to be able to help them; but obviously any money that's going in, we don't see where it's going out. That's a real problem in the back of my mind...

RP: Your  best bet on that score, if you are concerned about getting the money back to the person who has actually written the song, is to go directly to them and pay them. Get your documentation that you have done that, and then let ASCAP know that you've done it.

Promoter 4: Then the three or four songs, we could be guilt-free knowing that we have stayed within the legal boundaries, we've got our three songs and whoever wrote those songs; otherwise, if there are signs posted "Here's all the songs that we're aware of, please, we have not paid the copyright law, please do not perform these on stage, we're not legally able to do so"...

RP: No...if  you do, if you have it posted and if an ASCAP song is performed, that does not eliminate your liability just because you had that posted...

Promoter 4: In the management level you are and the people that you know, do you foresee no way that there could be, as suggested here earlier, a smaller percentage so that everyone could be within the law and the copyright laws and pay a little bit of something, which is better than a lot of nothing?...If there could be some consideration, but it seems like, as of now, there's this and no other options...isn't there a better way to rectify it?

RP: Unfortunately  there isn't. ...Our rate schedule does not try to justify the amount of money that's paid based on the number of songs that are used. The rate is set up based on set criteria, it's paid whether you use one song in ASCAP's repertoire, or all of the millions of songs in ASCAP's repertoire.

Promoter 3: In effect what you do is buy insurance, to protect you in case you do play a song; it's like insurance.

Promoter 5: I've got a question I've got to ask you, because according to the Public Law 94-553 [the 1976 Copyright Act] you haven't said a thing that's covered in the copyright laws of the United States. These laws that you're saying "you've got to do this, you've got to do that", OK, where do you get your authority? Is that ASCAP's authority? because it isn't coming from the United States laws. Where are you getting this, that you have the authority to set this "you're going to pay $100 and that's it"?...

RP: The federal copyright law says if you use music in a public performance, you must have the permission of the copyright owner to do so. That's all that the federal copyright law says. Section 106. That's all that it says. ASCAP is set up as a service to music users to give them the permission that they needed so that they will be in compliance with the copyright laws. Just like any other service, we price that at what we feel is necessary to cover our costs and distribute money back to our members. Our rate schedule was set by our board of directors, who are the composers, authors and publishers who are our members.

Promoter 5: I can understand this but, according to the law, that doesn't give you the right to set a license fee, it gives you the right to collect the amount by law that is due that writer.

RP: The  law doesn't say anything about ASCAP licensing.

Promoter 5: Right, but what you set there and told us, now, this is the gospel, we believe exactly what you're saying. No problem with that, we just want to know if it's ASCAP law or if it's federal law that we have to come under, or is this is something that ASCAP has dreamed up as their own law for a way for them to do business.

RP: The federal law is what we operate under. It says, again, that if you're going to use music in a public place you have to have permission from the copyright owner. ASCAP was developed back in 1914 as a service organization to service music users, to provide them with the permission that they need so they can lawfully use music. We are not a federal agency, we're not a state agency, we're not associated with the government at all. ASCAP is a non-profit membership society that represents composers. We give the people permission to use their music for a fee, and that's the service that we render. You don't have to use ASCAP service. You can go directly to the copyright owner, as we determined, you can not use ASCAP music, but there's nothing in the law that says how much we can charge. We charge just like your person who sets up your sound stage might charge, based on how much the service costs to provide you. Does that help? I just want to make sure I've got his before I...go ahead...

Promoter 2: Can I say something that might clear up this question, and correct me if I'm wrong on this, but [Promoter 5] was going through and checking out the 1976 Copyright Law, which is not the be-all and end-all of what ASCAP operates under, because they also have been taken to court under anti-trust proceedings. Somebody said they've got a monopoly on this and we need to look into it", so they also operate under, you mentioned the Consent Decrees and there's also the Amended Final , Judgmentanother court decision that came down trying to regulate this. So a lot of the things you don't find in the Copyright Law is covered under the consent agreements. Now, is that correct?

RP: [Nods][RP  later corrected that the Amended Final Judgment of 1950 is not one of several Consent Decrees, it is the only Consent Decree currently in force, the others being vacated.]

Promoter  can't figure out what they can do and what they
can't by just looking at the Copyright Law.

Promoter 6: If we provide you with the title of a song will you give us the author or writer?

RP: We  can, but the problem we get into there is that there are some songs that have the same or very similar title, so we really like to have the copyright owners name or the publishers name or some other thing to identify it too help us make sure we get you the right song. If you send us the sheet music we can tell you whether it's ASCAP or BMI. ...[Laughter]

Promoter 5: Most of the stuff we do never was in sheet music. The back of somebody's program maybe, that's the sheet music...

RP: I don't believe...If I can just answer one thing out of this before I forget. I don't believe that BMI has set up a special rate schedule for bluegrass shows.

Promoter 5: I've got a...

RP: Well, you have a copy of a rate schedule that they sent to you which they applied to your show, but what I believe it is, is a concert rate schedule.

LB: It's a 1%...

RP: But  that is how they charge.

LB: We would agree with that. We feel that is fair and honest, and this is what I'm saying. We would like to see ASCAP make some kind of concession, where they could come up with a rate structure that would be similar. We feel that would be fairer to those small promoters...

RP: But unfortunately we can't do that.

Promoter 3: Why can't you treat all the associations the same? I mean, as a group rate through our association. Wouldn't it be good if we got every promoter in this part of the country paying you 1%?

RP: You would have to get every promoter in the United States...you have to do that because of the Consent Decree that we operate under. If there is an association of bluegrass promoters per se it may be able to work that way.

Promoter 3: Well, I talked to Ken  Glimmer at the meeting and he was very positive about that suggestion. He thought it was very positive and worth bringing up.

RP: I'm  glad I supported it then!... [Laughter]

Promoter 3: Unfortunately he no longer works at the company but at that time he was very supportive of that.

RP: If you want to discuss that further the person you would want to get in touch with is Barry Knittel, who was Ken Gilman's boss I guess you could say. The thing you have to understand is that it has to be for the whole United States.

Promoter 4:...we could do that easily through IBMA [International Bluegrass Music Association].

RP: Because, and you have to understand the reason for it is because of the Consent Decree we operate under. And I'm not going to guarantee you that it can work.

Promoter 3: You've got every promoter paying 1% in and that could be a criteria for being a member of our association. We could help in a sense, I don't know, in our bylaws that as a member of our association we have to abide by the ASCAP rules of the 1%. Wouldn't you make a lot more money in a year's time with everybody paying in 1%? ...I've talked with promoters back east, they have no problem meeting your standards paying $150. I know a lot of them are paying in and have license agreements with you and there's no problem with it. But they're dealing in big numbers.

I think what's unfair is that the little grassroots associations are trying to preserve the music... We have no other gimmicks to draw people there, just for the love of the music, but it's hard to find one person in thirty in any given community who even cares about music. So we're struggling, we have a tremendous burden to try to keep the music alive. We have to pay compensation for entertainers because they drive great distances but basically, there's probably not one musician that plays at our festival doesn't lose money in a year's time. They do it because they love it. Same way with promoters. There's very few promoters that's making enough money that they can say they're doing it because of the money. They're doing it because the love the music. From the promoter all the way down to the entertainer. So in that vein, I think we need special consideration because I know that the music at the grassroots level is very important, important to the commercial industry. I don't know how many musicians started out on a grassroots level with our association that's playing big time country today.

...Now maybe through a national association we can work together with ASCAP on a group rate that we're all treated the same. A flat 1% would be fair for everybody. I see no problem with that, we know basically what these bands get. There's no problem with knowing what their talent costs in a festival, they have to advertise. So, I don't think anyone worries about disclosing what we have to pay for talent. Basically within a 10% accuracy rate, plus or minus. But I know we might feel uncomfortable to have to disclose to you what we take in. As far as talent cost, I think it's a fair way and it's a way that people can open up...

RP: I wish I could say yes or no on it, but I can't. I don't have that authority.

Promoter 4: Do you perceive that a possibility with total cooperation among and between the promoters and festival presenters?

RP: I could see it as a possibility. I honestly don't know if they would do it based on the percentage of talent cost. I don't know if they would do that. If they did they would want to have a provision in the agreement that would provide for an audit of your books, which maybe you wouldn't want, I don't know...

Promoter 4: Wouldn't bother me.

RP: Those  are things you would have to get down and you would have to negotiate with someone who has the power to negotiate those kinds of things and that is not me.

Promoter 5: If I write a song and I send it to Washington to be copyrighted, then you are responsible for the collecting the money?

RP: No, we are not... We do not copyright songs, we do not own copyrights, we do not publish music, we don't make records. Our sole business is licensing music. We receive a non-exclusive right from our members to license the use of their music. You as a promoter are really not a member of ASCAP. You are a, if you are a licensed promoter, you are a licensee of ASCAP. You are availing be yourself of our service, for what our fee is and what our rate schedules are, to then have the permission to use the music, whether it's one song or whether it's all the millions of songs. When you write a song, it is copyrighted. As soon as you write it, it's copyrighted under common law copyright. The only thing that sending it into Washington DC does, along with the lead sheets or something that shows what the song is, is registers it with the copyright office so that if someone turns around and uses it, you have something other than just your word against their word. That's all that sending it into Washington DC does, to the copyright office. But ASCAP does not own the copyrights, our members own the copyrights, and they give us a non-exclusive right to license their works, to collect public performance royalties for their works. Does that help?

Promoter 5: May I ask you one more question? In the copyright laws it says that we can take a license from the government. Now how far does this get us?

RP: I think...the thing you need to do is you need to be careful. It's just like any other law and I don't know how to explain this without stepping on anybody's toes, but it's like any other law. If you read the law in Columbia, MO, that governed loud noises. You probably wouldn't be able to understand it, I wouldn't be able to understand it. The only reason I know what I know about the copyright laws is `cause I went to school for a little bit and I've been doing it since 1976. The license you're talking about now is a compulsory license for jukebox vendors: it deals with coin operated phono record players only. The only other compulsory license in the law is for cable systems. Cable TV people. And to be honest with you now, the federal government doesn't even issue licenses to jukebox vendors anymore. They closed down the Copyright Tribunal `cause it was too expensive to operate. ...[RP later corrected that they have not in fact closed it down, but it does no longer issue licenses to jukebox vendors.]

So the thing is, you have to be careful when you read any law `cause there are so many different things that are in it. That's why, and I don't know if I've written to any of you, I probably have, but that's why in many cases we'll ask you, do you have an attorney who represents you or who can advise you", even if it's just a friend who can tell you and take a look at the legal documents that we can send. I brought along a few books that get into ASCAP and performing rights societies from a legal basis. I only brought a few because generally we don't like to give this out to a lot of people, because it's from a legal standpoint and it talks about legal things that only lawyers and people who are involved with the law can understand. And the best way to get it is to sit down face to face like this. If I could ask for anything out of this meeting, that is that if people could just respond to our letters. If it's just a note to please have somebody call me" and give us a number where we can call you...

Promoter 5: It's pretty hard to get ahold of your office.

RP: It's  not hard to get a hold of my office: my office is open Monday through Friday 9-5. It may be hard to get ahold of me, but it's not hard to get ahold of my office. If you leave a message with my office, a local representative will get back in touch with you if you leave a number where you can be reached. And if he can't answer your question, he will come to me and if I feel it's necessary I'll call you back. If you feel you must talk with me to get an answer, when that rep calls you back you tell him that and he'll tell me to call you. I oversee 4000 licensed account files and about 2000 prospective licensees, and I'm not looking for any sympathy because I love what I do, but there's only 12 hours in a day that my wife will let me work. She said once I go over 12 hours then she's definitely going to put on a divorce court meeting on our front porch.

Promoter 7: Our main concern that the writers get the money if we're going to pay it. I don't mind paying the money if it gets to the right place. What I understood from what you said a while ago was that the song is on a performance survey that, due to popularity of that song, if it got performance credits, that determines whether that writer got any money. If I perceive this right and being that bluegrass is a minority music, then they'll never get any money from ASCAP because it's not a commercial music. But we're paying for these commercial people `cause bluegrass never makes Number 1. One time that I remember in my life was Rocky Top went to Number 1 on the charts.

RP: That's  not necessarily so. Because ASCAP surveys all different media. We survey all different radio and television stations...

Promoter 7: But bluegrass isn't played as a majority...

RP: It doesn't matter if it's a majority or a minority. If it's played is all that matters.

Promoter 8: You're saying surveys are done five days a week, right?

RP: Our surveys are done seven days a week, 24 hours a day.

Promoter 3: Yeah, it's random samples in major markets like
Chicago and...

RP: There  is a taping station in St. Louis, MO.

Promoter 2: But they don't listen to everything that comes out of every radio station everywhere in the country, and so...you know with bluegrass, you're twisting through the dial and all of sudden you find it: "where did this come from?". These guys miss that sometimes, so even if it's only 1% of what happens in the country, sometimes they get it, sometimes they miss it. Sometimes it shows up as performance credit, most of the time it doesn't. It's not because it's not there, it's because their random surveys just don't happen to hit it statistically.

Promoter 7: So if it doesn't make the performance credit, then the bluegrass writers will never get any money, is that right?

RP: I believe that there is a special system, and there are special awards, but I believe there is some way, unfortunately I can't tell you because I don't do it but there is a way, for the songs to be included, if not in the survey, at least to be paid royalties. But again, the only way unfortunately you can find that out is to go to the membership office in Nashville with a question about it.

Promoter 3: According to the meeting of IBMA they have what's called special awards, but as a writer of bluegrass music, you have to apply for that through the licensing agency. When it comes time to give the awards out, you get a little trickle down. But you have to sign up for it I think.

RP: At that meeting, since you were there, did they talk about...I know that I had people calling me in St. Louis about filling out cards and sending them in to New York to indicate that the more cards they got then, for somehow or other they got royalty distributions based on response cards? I don't know if that was a  onset thing that they did once or...

Promoter 2: This fellow that Larry was talking about, Pete Wernick, managed to get $27 from ASCAP because he made an application for a special award; his banjo music was played on an advertisement and he had documentation to show that this was the case. The random survey missed it; they looked at it and said, yeah, this is fair and they sent him $27. And that's all he's received, ever received from ASCAP. He recommended that other people who know their music is being played on a radio station do what he did and that's what I think people have gotten confused over.

RP: See, even I don't know. So maybe, if you know the song is played on a radio station, if you can document that and send it to ASCAP, maybe there's some way they get it into royalty distribution.

Promoter 7: Well, if I pay you money, then that ought to be ASCAP's
job.

RP: It is ASCAP's job.

Promoter 7: Yeah. But it's falling through the cracks.

Promoter 4: Getting back to this [national organization question]...Is there a way that we could get together for a better fee, you're saying that's possible?

RP: That  would be entirely up to you, and if you could do something as far as a national organization is concerned.

Promoter 4: think it's very possible, everywhere around the  country there'sthe same feelings that we have.

Promoter 3:...Just as a matter of survival, if we didn't want to close down because we couldn't afford to pay the fee, the only other direction to go was to try to compile as many songs and put 'em on a public list and have our entertainers not do those... Now, I'd rather not do that. I'd rather work with a 1% fee that we all could live with; do it through a national effort through all the promoters. It'd mean a lot more money for you, we would have better feelings towards ASCAP, and then we would address the problem later on how to distribute this money to the writers. I think it can be done but, first we don't want to put the little shows out of business, already there's some that's closed up.

RP: The only alternative that I can give you, because... the thing that you have to understand, in the meantime, while and when you get to begin to negotiating this with ASCAP through your national organization, in the meantime you're still going to have this on-going problem because, just because you start these negotiations, when they start, is not going to eliminate the responsibility that you have and what we have to offer you at this time. And I think, from everything that I've heard today, that the Per Concert form of agreement is probably going to be the most effective way for you folks to begin compliance with the law. And that way, you don't pay if there isn't any ASCAP music used. Unfortunately you do pay if there is one song.

Promoter 8: If you have a percent of talent cost like they were talking about, just think of all the footwork your representatives or your employees would save.

RP: Those are all things that are very much in favor of your alternative. Unfortunately I can't give you the answer on that.

Promoter 3:You're not in a position to do that, Bob, I understand. If we're gonna to do that we have to get the laws changed from the headquarters. They have to be sold on it as a group effort. I think if you get enough people that band behind it then we can approach the people in New York, this Barry Knittel, and have a meeting with him, say in Nashville this February at the National Convention, with IBMA, I think they're working with us on it. Maybe we can get something like this. [I would also like to ask about the] gathering over at Kansas City where they just get together, charge no admission, pay no money out, strictly a jam session. According to the law, they don't have to pay, but I heard pros and cons on that because they had a concert down here in Hermitage MO where they were forced to pay, same situation. That's what I can't understand, why the law here didn't apply to him, whereas they were trying to force 'em to pay at Hermitage.

RP: You have to understand, we don't know anything unless someone tells us. So the people in Hermitage who may have paid ASCAP may have been exempt, but if they didn't tell us, then we have no way of knowing.

Promoter 2: The situation on that, if I can explain it, is: in Hermitage, MO they had a jam session on the courthouse steps as part of a town festival. Later they were approached, the lady who organized it was approached by ASCAP and asked for a $50 licensing fee which she went ahead and paid under fear of having a lawsuit brought against her. She then contacted her state senator Delbert Scott, who then went to the Missouri attorney general who said, "I can't do anything, it's a federal law"; he went to the FBI after that, they said there's nothing they can do about it, and she's never got her money back. This has happened also in Lincoln and [Roscoe] at this point, that they also have been contacted for these types of events. And Larry Ballenger can tell you about the KCABMC. Are these events exempt and if so, under what circumstances? If you want to add the story about the KCABMC, Larry...

LB: Well, I talked with Ray [the Kansas City field representative] when he came in the other night, and according to what I read in the copyright law and also what I read in ASCAP here, he agreed that we are exempt because we don't charge admission. It's not a commercial venture. There's no money exchanged hands. No money's paid to performers or officers of the club or others such as that. Now, Hermitage, I don't know exactly other than what I read in this article here, I don't know their circumstances but I would assume they would be very similar to ours.

Promoter 2: Under what circumstances could you exempt a non-profit performance?

RP: The Copyright Law explains it very well in Section 110. In Section 110(4) it exempts a performance of a non-dramatic... works otherwise that in a transmission to the public without any purpose of direct or indirect, which is one of the words we often forget, indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters or organizers. If there is no direct or indirect admission charge. So even if there's a donation or somebody who passes the hat, that's an indirect admission charge. After deducting the reasonable cost of producing the performance, any other proceeds are used exclusively, exclusively for educational, religious or charitable purposes. And those are the two things that have to be met for the performance to be exempt under 110(4). So in Hermitage, it may not have even been exempt, because there was an indirect commercial advantage.

Promoter 2: Which is what?

RP: Bringing  people into Hermitage MO.

Promoter 4: When you mentioned "unless you are informed", how are you aware of these festivals?

RP: We have six field representatives who are actually out in the different areas of the state, the area that we cover. We clip all the local newspapers. We subscribe to just about every periodical that you could think of; what's the one I just got in the mail, the Missouri Tourism Calendar. Representatives drive around and see a banner across the street in a town..

Promoter 2: I have one more question about this indirect part of the affair. Say that we paid no ASCAP fee for a show, played no ASCAP songs on that show, what responsibility do we as promoters have have for...the jam sessions happening out in the woods? Are we responsible for paying ASCAP fees on that music as well? This is among the people who paid to get in and amongst some of the paid performers who do this after their show responsibilities are over.

RP: The only thing that I can say is, if it took place at an event that you sponsor, present, promote, whatever you want to call it, it would be your responsibility to be sure that royalty fees were paid for that performance.

Promoter 5: This is not a performance, they just get together, maybe at midnight, 3 or 4 of 'em start pickin'. There is no way to police this.

LB: Let me say this Bob, if we had all brought our instruments with us and we broke out right now, right here in a jam session, would the man who manages, runs, owns or whatever this commercial place of business be responsible to ASCAP if we was playing something that was ASCAP?

RP: No. You would be responsible as the performing group. The person that's responsible is the presenter, promoter or performer, whoever puts on the music.

Promoter 5: See, there wouldn't be any.

Promoter 2: So would you then go to the people who were jamming and say, "since you've done this spontaneously you owe ASCAP X amount for having just played Orange Blossom Special"?

RP: No, we would go to the presenter or the promoter of the event.

Promoter 2: So then we as festival promoters are responsible for the music that gets played at a jam session! Spontaneously, outside of our control.

RP: I would say yes.

Promoter 2: So if we wanted to try to outlaw ASCAP music at a festival, we would also have to make sure everybody in a spontaneous jam session around the area did not play any ASCAP songs.

RP: I would say yes.

Promoter 5: See, there's no commercial value from this. We're not selling this. We're not collecting for this.

RP: It's part of your event!

Promoter 5: Not necessarily. Let's say, we have it in a campground. There's 10 people come and camp, they buy a ticket, but all they're doing . is camping They want to sit around their camp over there and do some pickin'.

RP: In all probability, ASCAP would not be involved. Because you have to look at the definition of a public performance now. And the definition of a public performance is to perform for a group "outside the normal circle of a family and its social .acquaintances"

Promoter 3: I think they have to take that on a one-to-one. It depends on that jam session. If they have a huge crowd of people around listening, if you cite them on it you may take a different view of that than you would then if they was 3 o'clock in the morning playing by themselves.

RP: That's right...For ASCAP to even become involved, it has to be a public performance as it's defined in the law, and we're not going to every campground in the state of Missouri or in the United States and try to collect fees from three families that get together around a barbecue pit as you're talking about and play a little bit of music. That isn't what ASCAP's purpose is, that isn't what we were founded to do. We're trying to stretch now, and, trying to, we're just trying to stretch, I guess I better leave it at that...[Laughter].

Promoter 2: If you had decided that you were going to go after a promoter, how would you do it? What's your mode of operation for trying to catch somebody using music from ASCAP that has not been licensed?

RP: We have teams of independent contractors who work for ASCAP as, what we call, formal investigators. And their job as formal investigators is to go to an event or an establishment or wherever the case might be. They're independent contractors we hire who are musical experts. ...[RP's boss later objected to this characterization of them as independent contractors, although RP was at a loss to explain why.]

Promoter 2: Where are they from?

RP: Wherever. Everywhere. Colleges, universities, radio station disc jockeys, people who have had musical backgrounds enough to be termed or qualified by a court of law as musical experts, able to recognize music of all different kinds.

Promoter 2: Now, would they come up to the door and say "I'm with ASCAP so you should let me in free and I'm going to check this out"?.

RP: No, they will pay the regular price, they will go in just like any other patrons and they will document each song that is played. For the whole festival. Then ASCAP will take it back and, just like we would index or research a list that you would supply, we will research that list and index it and find out what songs are in ASCAP's repertoire. And then we will go ahead and no doubt file a lawsuit for copyright infringement based on the uses of those songs without permission.

Promoter 2: So really, if you were investigating a festival, the promoter would not know about it until a couple weeks later when you had indexed the songs and said, "this song played at 11:30 pm was ASCAP, this song played at 12:15..."

RP: Probably it would be a couple months later. When the lawsuit was filed.

Promoter 2: Where is the lawsuit filed? Where would we have to go to defend ourselves?

RP: In  the district court of the area where your headquarters is.

Promoter 2: Where the festival was located?

RP: Could  be festival. If it's a travelingg promoter, it could be wherever the promoter's mailing address of registered office is in that district.

Promoter 2: What is the penalty? And how many songs do you need in violation before you would go after somebody? And how do you target people for investigation?

RP: We don't target anybody for investigation. We would of course have to have offered them our service. Given them the opportunity to take advantage of it. If they flatly refused and did nothing to try and cooperate, to try and take care of it, then we would sue them. Damages range anywhere from $500 for each song that's used up to a maximum of $50,000 for each song they used. Those are the statutory damages that are specified in the Copyright Law, Section 106 I believe, and it wouldn't take but one song.

Promoter 2: One song would be enough to do it?

RP: One song.

Promoter 8: After that was charted at a festival, you wouldn't survey this to see what songs were copyrighted and send them a statement of how much they owed before you file a lawsuit?

RP: No. They would've already had an opportunity to take a license with ASCAP. If we got to the point where we were doing a formal investigation, it would've already been turned it over to our attorneys and the authorization per se to do that formal investigation really would come from the attorneys.

Promoter 8: But there have been people from ASCAP who went out to chart festivals that haven't had lawsuits filed against them.

RP: That would probably be done by a field representative and then, yes, they would've been contacted after the event. But that would've not been a normal documentation, it would've been an informal documentation by an employee of ASCAP. If it's an informal documentation, then we will go back and we will contact the presenter or the promoter and advise him that he is using ASCAP music; and in most cases we do do that before we do a formal investigation...we would then give you another opportunity to take advantage of our licensing service, and offer you our license based on the schedule and the ticket price that you paid and the capacity of your show.

LB: Bob, let me ask you a question. What if [some of us] formed some kind of an organization, considered ourselves kind of like ASCAP, and we went to all of our bluegrass friends all over the country and received permission from them to be their agent in bluegrass music, just like you people are for the all of the music you represent?...

RP: Well, first off, to offer a service you have to have the music in your repertoire to license. And so that's, just like you said, "how in the world would we ever create such an organization to go out and do it?". It would be a very insurmountable task... You would have to get members, or people who wrote these songs you were going to collect royalties for...

LB: In other words then, it is possible that, one of these days there could be, instead of three or four organizations like ASCAP, there could be a dozen that a promoter would have to belong to in order to be safe in anything and everything that was played.

RP: There are three now. One that you haven't mentioned, which is SESAC...

Promoter 3: He's already told us that we could approach the writer on a one-to-one and make an agreement with him. It's the same difference. Say we got ahold of all the people that wrote the songs we're doing and said "hey, we'll go ahead and pay you for these songs since ASCAP's not giving you anything, we will make sure that you get it". I mean, there's nothing to stop us from doing that... The reason BMI come about, and you can correct me, is that, in a larger field, it's kind of like why we're here. No one was doing anything to monitor radio works and so BMI...

RP: No, where it really came from was the anti-trust suit that [Promoter 2] mentioned. There was a suit referred by someone against  thASCAP claimingat we were in violation of the anti-trust laws of the United StaStates back 19...

Promoter 2:...40.

RP: Back in 1940. When that happened, our Consent Decree was created which set up how we should operate, but also to eliminate any problem with anti-trust, BMI helped us out by creating their organization, which is a group of broadcasters who got together and created their organization, the BMI,
Broadcast Music Incorporated. Their creation back in the 1940s really helped ASCAP, because it eliminated any problems that we had had with anti-trust. Because now, there are two organizations for either composers to belong to to collect their royalties, and for people to go to to seek permission to use music.

Promoter 10: Is SESAC the youngest of all...

RP: Believe  it or not, SESAC is the oldest. It was created in Europe, back in the 1800s. It started out as a European performing rights organization; it's initials stand for the Society of European Stage Authors and Composers. It is no longer associated with those words any more, it is now anindependently ownedd company with its headquarters in Nashville simply known as SESAC. It represents pretty much strictly gospel and a few country-and-western hits. So, technically, if you do a gospel show on a Sunday, you could have SESAC coming in and saying "we need to collect royalties from you". Or "you need to pay royalties to us", whichever way you want to look at it.

Promoter 5: Mr. Pauley, put yourself in our shoes just a minute and let's get away from the finer points of this thing. We've all told you that we don't mind paying, we want to comply with the law. So how would you approach the thing? When your budget for having a festival, all right, last year, several of us was rained clear out. The money isn't available, you really don't have this much extra to spend, how would you approach this?

RP: The way that I would approach it, knowing what I know about ASCAP, and knowing what I know about your types of events, the first thing that I would try to do is I would try to see if I can know every song that is gonna be played at the event. And if I know that, and if I could get permission from the people that wrote those songs, the people that own the copyrights, I would go to them and I would get written permission from them. You may find that it's too big a task, and that's it's not possible.

If you can't do that, then the next course of action that I would take is I would subscribe to ASCAP's licensing service, and I would take out, from what I've learned today, a Per Concert form of agreement...I would subscribe to a Per Concert form of license agreement, I would abide by all the terms of that agreement, I would report my festival 30 days in advance, I would, unfortunately you're not going to like this, but I would pay my fee 30 days in advance; and then, seven days after the event took place I would send in a list of all the songs that were played at my event. ASCAP would then abide by it's terms of the contract and we would research it; we would tell you what performances of ASCAP music took place; if even one ASCAP song was used, then we would keep the royalties that you had paid; if no performances of ASCAP works took place, then we would refund to you, or credit toward your next event, it depends on how many shows you do a year, to money that you had paid..The difference between the Per Concert license agreement, which is what I just explained, and the Blanket agreement is that the Blanket agreement provides that you pay whether or not ASCAP music is used, for every concert or every event that you do which uses music; whether it's ASCAP music or not. That's why I think in your case you have to do a little research, you have to see how much ASCAP music do you really use, maybe send us a list of the songs that are going to be played at your next event. We'll research it free of charge. And we'll tell you what is ASCAP and what isn't.

Promoter 11: But we don't know what they're gonna sing.

RP: That's another reason for having the ASCAP ...[Blanket] license.

LB: OK, we do that, Bob, and we send the list in to you and there's 10 ASCAP songs that were done. Now what is the charge? ...I'm talking about under the Per Concert.

RP: This  rate ...[indicating Blanket Rate schedule] plus 50%.

LB: So then this would be the cheapest rate [indicating Blanket Rate schedule].

RP: But then you pay for it whether there's ASCAP music used or not; and you pay for everything ...[the rights to all songs in the ASCAP repertoire]....

LB: It also saves the promoter of the burden of having a list of songs...

RP: Plus the other thing...all of it is so detailed...I would rather do it one-on-one with people. The other thing that you have to consider, in the Blanket license agreement, if you do a lot of events every year then there's a discount. If you go over 25 concerts in a year, you receive a discount of 20%. ...[To Promoter 3] So, to turn your dealie around, you may even wanna just have the IBMA secure a Blanket concert license agreement with ASCAP and everybody report through IBMA on that Blanket license agreement. And that way you've just saved yourself 20%. If you pay for a hundred or more shows in advance, you save another 5%. So there are ways to work it; the thing that you have to do is you have to do what we're doing here, you have to open up the dialog and you have to sit down and talk and not just have people out there that we write to 60 times and nobody ever calls us back. That's the most frustrating thing that I work with.

Promoter 5: You know, one of the reasons that this doesn't happen. The first time we get literature, it is a direct threat. You're going to sell us a protection. And everybody in the country is so mad at ASCAP...it's like here, we don't mean to take it out on you as an individual...

RP: Doesn't bother me! ...[Laughter] I'm used to it....

Promoter 5: Yeah, you're probably used to it. It is a direct threat. Some of this has even went to the Post Office because it's been a direct threat through the mail...

RP: But, did they ever find that it was?

Promoter 5: They have never ruled on it, last I heard. I don't know... But this is what's caused so much hard feelings: I'm sure not gonna call anybody up, and if I do I'm gonna be so mad by the time I get him called, because he's threatened to sue me. As far as I'm concerned, he's running a protection racket: "you give me so many dollars, I guarantee you I won't sue you". Now, that's the first way that I think almost everybody in here in this room understood it the first time they read that.

RP: I think the problem is that nobody ever really read the first letter. What happened is, they got the letter, they thought it was junk mail and they threw it away, and they read the second, third, fourth and fifth letters. Because...the first letter, event though it may be strong, it does not threaten; all that it does is offer the service. Where they start to threaten is when we don't get responses. And I think that anybody would do that, just like you get frustrated when you call the office to try to talk to me and I don't call you right back, we get frustrated when we write people six letters and nobody calls us back. Or nobody writes us back and responds.

Promoter 5: Well, alot of that is, we feel like we're being ripped off, on account of the charge, the way it is, and having already paid somebody else [BMI]; it leaves kind of a bad feeling...

RP: I understand. I do understand that. There's nothing I can do about it, but I do understand. You know, I think you have to admit, now that you've met me I'm really not that bad a guy. I mean, now that I've met you, I don't think you're such a bad guy.

Promoter 5: You have made me so mad on the phone, if I'd reached through the phone you wouldn't a had a beard [Laughter]. I don't believe in intimidating people...

RP: Neither  do I.

Promoter 5:...but this is the only way that I can look at the correspondence I've had from ASCAP.

RP: Because it went beyond the first or second letter... The first letter is strictly very informative. It does start out with, it says "under the United States Copyright Law, the performance of music in the operation of your business must be licensed". And then the second letter that we send out is very simple, it just says "we have not received any response to our recent correspondence. If you or your attorney has any questions, please contact us".

Promoter 5: See, there you are again, referring to the attorneys. And you're aware of that as well as we are, the only thing that guy is looking at, "well, it's only $4-500, just pay 'em". Well that's great in his position, he's already charged me $100 to tell me that! [Laughter] But that doesn't solve any problems, when you really can't run the festivals that we run and afford to pay this kind of money.

RP: And what I think we've come up with here are a couple of very good, different alternatives. I know that the Society for the Preservation and Encouragement of Barbershop Quartet Singing in America has an agreement with ASCAP through our Chicago office whereby they paid for all sponsored events by that organization. The Sweet Adelines, which have just recently changed their name to something else and moved to Dallas TX, also have an agreement with ASCAP through our Dallas TX office whereby they pay for every event sanctioned and sponsored by that organization based on, I believe, and I don't administer those licenses, but I believe it's on the Concert Rate schedule.

Promoter 8: So they're getting a number of discounts then that would be different than individuals would get.

RP: Right.

Promoter 11: You mentioned people not reading their first letter, let me ask you this: how do you mail out that first letter?...

RP: We mail it by regular United States mail based on the postage rates that everybody else pays. The first letter about 65 cents to get it out I believe, because of the enclosures that are included with it.

Promoter 11: The reason I ask that, if you send out under this Bulk Mailing thing, then it is junk mail. If I get a piece of mail out of my mailbox and I see on there 11.3 cents apiece, I pitch it in the trash 'fore I get in the house, 'cause it's junk mail.

RP: It's mailed first-class

Promoter 12: Just a quick definition if you will defining an event, a concert, and a festival.

RP: Each  performance for which there is a separate admission would be considered a concert.

Promoter 9: Has ASCAP ever moved into the spiritual end of collecting a licensing fee for churches?

RP: We cannot.

Promoter 9: Well, I though you said a while ago that if some group of musicians that the church invited to come into the church to do a concert, they could collect a fee.

LB: SESAC, I think he's talking about.

RP: Did I say that? I don't believe I ever said that. I think we've got a tape of it, so we could even find out if I did. But, there is an exemption for religious performances. Again, we have to go to the Copyright Law, and we have to look at Section 110 (3), and we find that a "performance of a non-dramatic literary or musical work, or even a dramatical musical work of religious nature or display of a work in the course of services at a place of worship or other religious assembly" would be exempt. If it's during a regularly scheduled worship service.

Promoter 2: When you say regularly, would a gospel show on Sunday morning at a bluegrass festival that's held every year be considered a regular service?

RP: A worship service would include the things that are normally in a worship service, depending on your faith. I happen to be Presbyterian, so it includes a call to worship, it includes a benediction, it includes prayers, it includes a scripture reading, it includes a homily or whatever you want to call it,...

Promoter 2: So if we had a minister from a local church sort of running our gospel show, and it's all gospel music at that point, it would considered be a worship service...

RP: If it's a worship service, that would be exempt.

Promoter 5: We do have a period on Sunday morning for a priest or a pastor; we change denominations, because...

RP: [Unintelligible] multi-denominational. As long as it's a worshipservice.

Promoter 2: But when you say regularly scheduled, that's what I'm worried about.

RP: I would say if it was every year, then it would be regularly scheduled. I don't think that ASCAP is going to get that picky about it. If it can be recognized as a worship service, it would be exempt. Now, just that performance. Now, if in the afternoon you came in and you had your bluegrass band get up on stage and did the regular stuff, that would come under our rate. And I can't, I hope that you people don't think that I'm trying to hide anything, 'cause I'm not. I mean , I could go and read you the whole Copyright Law, but it wouldn't do any good, I can't really address a question or concern, and neither can any or my representatives, until they know what the situation is or what comes up. It's just like in Hermitage, or in these other areas that you're talking about. ... [In fact, in her Consumer Complaint to the Missouri Attorney General's office dated 12 Jul 89, Dorothy Staten of Hermitage stated that she had "tried to contact  Mr.Pauley after my music day was over just for him to explain more to me and that I have filled a complaint with the Att. Gen. office, but he won't return my call." RP later said that at the meeting he did not connect the name of Dorothy Staten with the Hermitage situation and that he could not recall the specifics of their conversations without referring to the file.]

Promoter 8: You don't think, from what I've been hearing each one of these representatives has a different interpretation.

RP: Well, they may have a little bit different. But I've been working with these guys most of 'em since about 1987, so we've had a good three years with these people that are here and that work out of  St.Louis. And I try very closely to do everything in accordance with the book per se, or by the book. And I don't want to collect fees for anything that shouldn't have to be paid. I don't want to make people not be able to enjoy music or play music. My love in life has always been music, since I was in third grade.