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Sounds of Silence 

ASCAP's legal threats kill a thriving local music scene

Wednesday, Oct 22 2003
Seven years ago Regi Harvey decided to clean house -- for good.

"People would come over to my house on a Friday night, and I got tired of the cans," says Harvey, an Outer Mission drummer and guitarist who's been playing Bay Area clubs for the last 40 years. "So I came over here and asked if I could host a jam session, instead of doing it at my house with my friends and having them leave beer cans around."

Bill Courtright, the owner of Skip's Tavern on Cortland Avenue on the south side of Bernal Hill, took Harvey up on his proposal, and acquired a cabaret license. Before long Harvey's Sunday and Monday blues jams became a regional gathering place for the Bay Area's amateur Norton Buffalos and Stevie Ray Vaughans. After a while Harvey expanded the jams to Thursday, hiring a regular house band. Friday and Saturday became headliner nights, with local professional bands. About eight months ago the bar added a DJ to run karaoke nights on Wednesday.

"It took off," Harvey says. "It became a sort of networking place where musicians would come by and trade jobs. You need a drummer? You need a guitarist? You'd find them here. My whole premise, though, was that you had to be entertaining. You'd have musicians who were new to music, so I put pressure on them to play good. If there was a woman who had played 11 months on drums, I'd invite her to play along. The whole idea was to open up. The goal is being a musician and getting your chops together."

Harvey and I are sitting at the magnificent old horseshoe bar that circles the center of Skip's Tavern. It's 11 a.m. We're alone but for a barmaid and an employee who's groggily enjoying breakfast. Aside from Harvey and my chatting, it's silent. Since Oct. 1 this quiet has extended through the after hours thanks to a lawsuit filed by the American Society for Composers, Authors, and Publishers, or ASCAP, an organization that collects copyright licensing fees and funnels them to songwriters. A year ago ASCAP sent a "spy" to the Tavern. The spy claimed he'd heard a band play three copyrighted songs. ASCAP filed suit, later sent a spy again, and filed another suit. Facing hundreds of thousands of dollars in potential damages, Courtright ordered an end to the jams, the jazz, and the karaoke. The 7-year-old music scene at Skip's died.

"This is business as usual," says ASCAP Media Relations Director Jim Steinblatt of the Skip's suit. "If they're using ASCAP music, we want them to be licensed by ASCAP."

But to Harvey and the community of musicians ASCAP has silenced, the action was anything but ordinary.

"We're not trying to steal from them," Harvey says. "We're trying to do something decent."

As chance would have it, I began typing this story on Black Thursday, the day Universal Music, the world's largest music company, announced it would fire a total of 1,350 employees in response to an ongoing sales slump that executives blame partly on online file sharing, which music, film, and software industry representatives say is tanking their industries. America's mighty entertainment business for several years has been clamoring for new measures to strengthen copyright laws and impose harsher penalties on those who violate them.

On one side of this debate are media companies, which say that if present trends continue there will be no way to pay artists for their work. They'll return to day jobs. And creative work will become scarce. So-called "fair use" advocates, meanwhile, say laws that copyright-owning organizations are proposing will make creativity a monopoly commodity of the media industry. These activists say culture itself is at stake, and that the essence of the creative process -- interpreting, borrowing, sampling, imitating, adapting, ridiculing, and criticizing already existing work -- will wither.

Like so much talk involving the Internet, much of this argument consists of wild conjecture by both sides. But unlike much Web puffery, free-use doomsayers' predictions about the potential for extreme copyright protections to kill music have a real-world, present-day example: a neighborhood bar on Cortland Avenue where fledgling local musicians used to gather and now don't. The framers of the U.S. Constitution gave Congress the power to create copyright protection for "limited times" to "promote the progress of science and the useful arts." Following 227 years of increasingly restrictive court decisions, accompanied by a steady stream of more-restrictive legislation, the law is now used to stanch rather than promote creativity.

"These people are amateurs," says Dennis Karjala, an Arizona State University professor specializing in copyright law, referring to the musicians who until recently played at Skip's Tavern. "There's a good argument that shutting these people off is a bigger loss to culture than the few extra dollars that would go to copyright owners' profits. People write songs, they release them to the public. In my view, they become part of American culture. Copyright law provides, presumably for limited time, that they get a monetary return for their efforts, and I don't begrudge them that. But as long as that monetary return is substantial, and others have a continued incentive to write music, the time comes to limit that right. The Supreme Court has written over and over again that the basic goal is not to give a return to the author. The basic goal is to promote the advance of knowledge, the advance of culture. The goal of giving money to the copyright owner is secondary."

As ASCAP has used U.S. copyright law to kill music at Skip's, increasingly draconian copyright laws relating to digital media also stand to limit, rather than promote, culture's advance.

"The really important issue is there's a basic public interest in a balanced copyright protection," Karjala continues. "The trend of the law has been uniformly in the direction of longer, stronger, broader copyright. People treat copyright as if it were between two parties -- owner and user. But the public has a strong interest that copyright not be too strong."

ASCAP has for years blanketed America with music spies, listening for copyrighted songs. It routinely threatens the owners of bars and restaurants, promoters of small-town free concert series, or anyone else who might be singing an ASCAP artist's song with lawsuits. BMI, another collection organization, which along with ASCAP controls 98 percent of the country's copyrighted music, does the same. Bar owners, club promoters, and city fathers become outraged, they complain, and, if they're getting good legal advice, they settle.

ASCAP was a strong proponent, along with Disney, of the most restrictive portions of the 1998 Sonny Bono Copyright Term Extension Act, which lengthened copyright protection by 20 years, from the life of the author plus 50 years, to life plus 70. That same year Congress also passed the Digital Millennium Copyright Act, which criminalizes the creation of devices designed to circumvent copy protection technology. And the U.S. House of Representatives is now considering a bill that would make it a felony to transfer music over the Internet without copyright holder authorization. If it passes, a teenager could spend five years in jail for uploading a single song.

The U.S. Supreme Court this spring aided this march toward cultural monopolization when it rejected a lawsuit by Stanford professor Lawrence Lessig challenging the constitutionality of the Bono Act. Lessig had claimed that the act subverted the constitutional framers' intention to confine copyright to "limited times." But the court reasoned that life plus 70 years still counts as a "limited time."

An amicus brief filed in that case by a group of legal historians, however, suggested that copyright law as currently enforced by the media industry and collecting societies sabotages the framers' original intent of providing the public with access to creative work.

Three hundred years ago an English printers' guild controlled the sale of all works in that country, including those of authors dead for centuries. The guild resisted pressure to limit its monopoly by making the same argument media companies make today: No other property enters the public domain after a certain number of years; why should books? English lawmakers reasoned that copyright law should benefit the public, and established an intellectual property ownership limit of 14 years.

The drafters of the U.S. Constitution were well aware of the struggle with the English publishing monopolists, hence their "limited times" language. And hence the first U.S. copyright law, signed by George Washington in 1790, which gave authors a monopoly right over their creations for 14 years, with the option of renewing the monopoly for another 14.

I first found out about the silence at Skip's a couple of weeks ago, as I was trolling for potential venues for the Shuffle Kings, a band I'd been allowed to join through nepotism: My brother-in-law, Art, is its leader. He'd advertised around Oakland and managed to recruit a good bassist, drummer, and singer. Art's a really great guitarist. And I've been playing the same 12 riffs over and over again since I took harmonica lessons 20 years ago. We put together a song list, mostly covers of tunes like "Mustang Sally," practiced four hours a week for several months, played a block party, and felt we might be ready to play somewhere along the lines of Skip's Tavern.

Being no expert in constitutional law, I'm not sure if the Shuffle Kings are what the framers had in mind when they authorized Congress to "promote the progress of science and useful arts." Our bassist is the only one among us with a grasp of music theory; we have yet to figure out how to simultaneously end songs; and our last practice consisted mostly of me trying to stop my amp from producing feedback.

If we'd gotten a gig at Skip's, we'd have worsened the club's legal situation, given that we play copyrighted songs.

"We can't afford to get sued for playing 'Mustang Sally' for the 99th time," Harvey notes, as he finishes his cup of coffee.

That would be Wilson Pickett's 1966 hit, written by his band member Sir Mack Rice in 1965. Rice last year told a newspaper reporter he'd gotten the idea for the chorus -- "Ride, Sally, ride" -- from the uncopyrighted old children's rhyme "Little Sally Walker," whose chorus goes "Rise, Sally, rise." An search shows 177 albums with covers of the song. Tiny bars the world over resonate with the chorus, I'm sure, this very moment.

I'm not of the opinion that Sir Mack shouldn't have been remunerated for his creation. Had there been no chance of cash payback, he and bandmate Pickett might not have pursued the musical careers that continue to benefit us all.

But I do believe that as American courts, lawmakers, activists, media corporations, tavern owners, digital entrepreneurs, and artists wend their way through this season of doubt about the future of intellectual property, it's important to bear in mind our founding fathers' intent of keeping the music alive.

Albeit Jefferson and Washington might not have envisioned the creation of "Voodoo Queen," Regi Harvey's 1986 blues song, licensed through BMI.

"I belong to BMI. And I think it's great if they can get someone paid some money for their work," Harvey says. "But I don't want them going after someone for covering my song in a bar."

Did he ever get any royalties from the song?

"Yeah, they sent me a check in 1986. I can't remember who played it. It was for $3.50."

About The Author

Matt Smith


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