ASCAP vs. GIRL SCOUTS
The Best Things in Life Aren't Free, or, Why You Might Be Better Off If You Wind Up Paying for Those Campfire Singalongs
by James V. DeLong (Expanded from the National Law Journal, March 10, 1997)
[Drawing by Russell Christian, Tel/Fax: (718) 499-5187. Used by permission.]

One of the great quarrels of this era of the Internet is whether rights in intellectual property should be constricted in response to new technological realities. I vote "no," and to support this view I cite what looks like an awfully tough case for my side, the recent flap involving American Society of Composers, Authors and Publishers and 3 million girl scouts.

Under copyright law, a song writer is entitled to a fee for each public performance. Because the costs of negotiating millions of transactions would be prohibitive, society invented a system: Composers join ASCAP or a similar organization, which sells a blanket rights that permit users to play music by any of its members. ASCAP has always collected fees from radio and TV stations, clubs, concerts and other major users. Recently, it has gone on the offensive against smaller users, including restaurants rodeos, stores, even funeral homes. In the fall of 1996, this offensive tangled ASCAP in a public relations disaster.

It notified 8,000 summer camps that they must pay for using ASCAP songs in public performances. The meaning of "public performance," a term of art under copyright law, was not specified, but some camps interpreted it as covering any use, including the good old campfire singalong. Girl Scout Camps in California decided to purge their songbooks of such works as Puff, the Magic Dragon. The press got hold of the story, and the headline punsters had some fun with "The Birds May Sing, But Campers Can't Unless They Pay Up;" "Campfire Churls;" and other jokes. [For the details of the affair, see articles by Lisa Bannon, Wall Street Journal, Aug. 21, 1996, p. A1; Ken Ringle, Washington Post, Aug. 24, 1996, p. B1, & Aug. 28, 1996, p. C3; Elisabeth Bumiller, New York Times, Dec. 17, 1996, p. B1.]

ASCAP retreated, taking out ads saying that it loves the Girl Scouts, and, to be gender-equal, the Boy Scouts, too. If you read the ads closely, ASCAP gave not a whit on its substantive position, but it stanched the hemorrhage of bad ink.

The ASCAP tale is useful because it captures so much of the ambiguity inherent in intellectual property. Those who were furious at ASCAP made some good points. Song writers draw heavily on the efforts of other people, such as those who invented the musical notation used to put songs into marketable form, a rich tradition of folk music written without benefit of copyright, and old works no longer covered. The composers are tapping into a sort of cultural commons without which their efforts would be bootless, and they have no right to appropriate it. An ingenious reporter contacted Pete Seeger, the folk singer, who said that "music really comes from and belongs to everyone." His father was a musicologist who judged that even Beethoven's music was about 90 percent musical tradition and 10 percent his own. Besides, we suspect that a composer actually benefits from the campfire singing. The more his music enters the great collective consciousness, the more often it will be performed in formal settings and the more money he will make. For him to attack the use of music by the people seems perverse as well as chintzy.

On the other hand, song writers do have to make a living. If there were no way to get paid, composers would lack not only the incentive, but the time and energy to write, since they would have to make a living some other way. Music may belong to the people, but Pete Seeger himself holds over 200 copyrights, including Where Have All the Flowers Gone? and his royalties are respectable. And why shouldn't he have the pleasure of collecting them, in exchange for the pleasure his work gives us? And even if Beethoven was only 10 percent original, what a 10 percent! Maybe ASCAP is right -- "Well, little girl, I would like to let you sing Puff for free, but that would cheat you because then fewer such songs would get written; since I cannot bear to deprive you, off to the slammer with you."

The essence of copyright law is the effort to find a reasonable way to divide this baby, and it is not easy. Lots of lawyers make a living mulling over "fair use," "public performance," and other concepts. It is indeed a little hard to see a participatory singalong as a public performance. But leaving aside this issue, in the end, and contrary to your initial instinct, on this dispute you should go with ASCAP on the basic moral principle involved. It would never occur to anyone to say that Girl Scouts should get sheet music free from the local music store, or guitars. Why should the music itself, the true core of value, be free just because it is intangible?

The real problem is not principle, but price. ASCAP started out demanding upwards of $1200 per season per camp, and came down to about $250. In a frictionless free market, one without transaction costs in which campers could get composers to bid against one another, the price of using a song would go into free fall, down to pennies. ASCAP's real mistake was not in asserting its members' moral right to charge, but their right to charge a monopoly rate.

This distinction is crucial, because the computer revolution is changing the possibilities drastically. Before too long it may be possible to check on the cost of the rights to any of the four million songs on the ASCAP list by touching a button, and the frictionless market will be close to reality. It might cost 2 cents to sing Puff, payable over the Internet, or you might learn that the composer, like the Grateful Dead, believes in giving away performance rights for occasions such as singalongs. Whatever. The key point is that as long as the forces of competition are working, the creation of clear, enforceable rights in intellectual property will work to the long-term benefit of Girl Scouts as well as composers. Problems caused by transitory problems of transaction costs or monopoly pricing should not obscure this fundamental truth.

I think composers should be compensated for their work and certainly no group like the girl scouts that charges for membership or for activities should be exempt from paying them.

On the other hand, I think it is unfair to be charged for performing or recording music when you are not doing that. If you want to start a music preservation society that only sang public domain material, would you have difficulty in avoiding ASCAP fees? I am not sure. Don't Canadians have to pay a music tax on blank cassettes even if they use them to record a school lecture? I do not think the difficulty of charging for performances justifies charging when there are no performances.

Maybe someone should purchase "Puff" outright and donate it to the public domain.

As Uncle Dave said in a previous post, we, as performers, are not liable for the royalty fees when we play a club. The Club is. I have played several venues where an ASCAP or BMI guy has come in to check on licensing of music. The fee varies depending on several factors, including number of seats, whether there is dancing or not, the number of hours the music is used per week, etc. The last place I played that got audited had 5,000 square feet, 250 seats and large dance floor with music 6 nights a week and the fee was around $250 for the year.

Hello all.

In Brasil,the performers are not liable to pay royalty fees, but the promoteur is.
The unique obligations of the musician are:
1-To possess the valid musician profi card.
2-To possess the music report of performed songs .
Regards,
Chico

That's the big problem in the U.S. Nobody really keeps records of what gets played in clubs. A big percentage of the money collected goes to "operating expenses" of the collecting agencies. There is no way the right amounts get to the right writers.
In all the years I owned nightclubs, nobody ever asked for a play list of any sort.
A new system has long been needed.
DonM

Here in the States, one thing that is changing fast in the "outside" market is insurance. There are lots of catering halls, and private clubs that REQUIRE sub contracters to carry liability insurance. I have a 2million in coverage, and it only costs about $175 per year.
Now, if someone trips over a speaker wire, or gets skewered with a mic boom - the club is not responsible.....I am.
Is it like that accross the globe?

Hi Cliff and everyone!

Are the Girl Scouts of America a profit making organization now? I thought those fees I paid were for the troup expenses? All those cookie sales also? Why would you charge them because they accept membership fees? That would mean we have to go to the churches and start collecting copyright fees from them also? Afterall they collect fees in churches. Every week! Senior citizen centers also charge fees to belong. What about school dances? They charge fees. The list can go on and on. I think a line has to be drawn here someplace.

My 76 year old Mom plays keyboard sing-a-longs monthly for her senior complex. I have copied the music for the elderly folks for them to sing along with her. I guess she is breaking the law? They sometimes have a charge for their sing-a-longs to cover cookies and coffee costs so this copyright may apply to them. I know I broke a law when I copied the music for them but they could never afford 20 copies of each song. They all, only live on SS with subsidies from state and federal. I think we have to be careful as to who and what we apply these laws to.

Seems there needs to be updated laws that pertain to collecting fees for the copyrighted world. They appear to be outdated and do not fit our society as it is today or so it seems. Wish I had some ideas on how to fix it but it seems the laws reach way out of their intended purpose sometimes.


-Linda

[This message has been edited by LindaFus (edited 02-03-2002).]

Hi Linda,

I do not think the profit or non-profit status of an organization is relevant to whether people should pay. Every group is organized for some purpose--and if they are using copyrighted material to achieve that purpose, they should pay for that, just like they pay for supplies.

OTOH, I feel that the term of copyrights is ridiculously long. A 20-year term is ample to motivate people to write songs. Maybe the term could be extended in some cases, but for the most part, I would like to see songs enter the public domain 20 years or so after they are published. The current copyright laws a biased toward corporate greed, and as the corporations get richer they lobby for even stronger laws. So I do not think the current law represents a balance between the interests of the composer and the public.