Even if Imbibe, the restaurant, had an ASCAP license, they could not perform “The Wind Cries Mary” for the simple reason that ASCAP licensee do not get a list of songs they are licensed (about 50 to 100 million) to perform.

ASCAP may say that their catalog is online and anyone can check it prior to performing a song. But that “catalog” is a fraction (10%?) of the songs that are licensed when ASCAP issues their blanket license.

And what if a customer asks for the performance of a song, such as “Happy birthday”. Since it was unplanned, is the requester told to come back tomorrow, so the ASCAP online catalog can be checked first?

And what if the songs to be performed not in the ASCAP catalog, what does that mean? Is it in the pulic domain and can be performed? Or is it with BMI? Or does the song have a rights holder? Clearly under such uncertainty and restraints, music cannot be performd in restaurants.

Roughly, about 90 percent of the songs licensed by ASCAP are not on their online catalog (repertoire, they call it). I personally suspect that ASCAP itself has no idea of which songs they license through their cover- all-songs blanket license.

Then ASCAP licenses businesses that have radio music beamed to the customers. But there is no way the licensee to know what the radio station will broadcast or if the radio station already has a license to broadcast the music.

I wonder, when will somene analyze the ASCAP model of licensing and all its senseles incongruencies, perhaps in court. I am amazed that no lawyer has beaten ASCAP in a case as a result of points I make here.

Rafael Venegas
http://www.gvenegas.com

* San Francisco Chronicle, December 3, 2003 (cut and paste urls)
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2003/12/03/BUGL13CH5H26.DTL
* The Daily Toreador (Texas Tech), March 23, 2004
http://www.dailytoreador.com/media/storage/paper870/news/2004/03/23/LocalNews/Music.Publishing.Companies.Suing.Local.Bar-1278453.shtml?norewrite200610111831&sourcedomain=www.dailytoreador.com

ASCAP has also been criticized by participating artists, who claim they don’t receive their share of ASCAP’s license and settlement sales.

* Self-published songwriter Harvey Reid’s essay on ASCAP
http://www.woodpecker.com/writing/essays/royalty-politics.html
* Critical website chronicling the Stiffff Kitties’ dispute with ASCAP
http://www.ascapsukz.com/

The ASCAP business model has also faced legislative opposition through the years.

* Fairness in Music Licensing Act of 1998 (17 USC 110), which carves out exceptions for certain performances, defining them as non-infringing (cut and paste url)
http://www.copyright.gov/title17/92chap1.html#110

Imbibe didn’t copy anything, it didn’t distribute anything, it didn’t perform anything. Black Notes, the local band, performed the song, apparently under the band’s own direction.

Of course, in this topsy-turvy post-Grokster world, “inducement” might play a role, but even then, I don’t see a pressing merit in this lawsuit. To me, this looks like yet another copyright owner trying to create a market for made-up rights the law does not actually grant.

I’m crossing my fingers for Imbibe; hopefully someone is willing to pick up this case pro bono and get it dismissed. I know the restaurant workers’ culture is very close-knit, so hopefully a bartender or server or host has an aunt or uncle or cousin or parent who practices law and is willing to help save a family member’s job.