With Sylva’s annual street festival Greening Up the Mountains right around the corner, town commissioners had a somewhat unusual decision land on their doorstep last week: risk a lawsuit or pay a licensing fee to a music industry group.
Apparently, you can’t just show up with a guitar at a town event and play “American Pie” anymore.
Sylva’s attorney, Eric Ridenour, advised the board not to pay $305 to the American Society of Composers, Authors and Publishers, because he believed paying the fee could set a precedent that would allow other licensing companies to gouge the town.
Ridenour based his advice on an experience with a representative of another licensing company, SESAC Inc., last year. The sales representative harassed Ridenour for weeks.
“It became more of a marketing tactic than a legal issue and it wasn’t hard to see through that,” Ridenour said.
Ridenour believes the town could win a lawsuit in the event that they are sued over a copyright violation during a town-sponsored event, in part, because the licensing companies don’t guarantee which artists’ songs are covered by their fees.
ASCAP, BMI, and SESAC are performing rights organizations. Effectively, they all do the same thing, issuing blanket licenses to music broadcasters, like television and radio stations and music performance venues.
By paying the blanket license fees, towns like Sylva are ensured that they can’t be sued if an artist at their festival plays a song without the permission of its author. It sounds ridiculous at face value, since most part-time musicians regularly play cover songs without permission, but if you don’t pay licensing fees, you are potentially liable.
“Potentially liable means it’s a gray area and you could probably write a dissertation on it,” Ridenour said.
Towns like Maggie Valley and Franklin, which have long-standing festivals that include music, pay the licensing fees. Ridenour said if Sylva was really concerned about the liability, it could get the musicians to sign a waiver saying they accepted responsibility for any copyright violations.
Mayor Maurice Moody didn’t like that idea.
“I would really be opposed to that,” Moody said. “Too many local musicians have day jobs. They’re part-time and they play for pleasure. I wouldn’t want to shift that burden on to them.”
The performing rights organizations aren’t boogey men. The licenses sold by ASCAP, BMI and SESAC pay royalties on copyrighted music. Royalties pay the songwriters. But Ridenour’s point is that the town could end up forking over $300 per year to each of the organizations, and over time the amount adds up.
Moody said he would rather pay the fee than face the possibility of a costly lawsuit.
“I don’t think it’s worth the risk,” Moody said. “Even though from a legal standpoint he’s probably right.”
Music rights will be an issue at Greening Up the Mountains, but they’ll be even more central to the town’s ability to hold its Friday night music events throughout the summer.
Commissioner Stacy Knotts also voted against passing the buck to the artists and said she didn’t mind the town paying the licensing fees.
“It might just be a part of doing business –– part of the joy of having music downtown,” Knotts said. “I definitely want to keep having music in the town.”
The commissioners voted 3 to 2 to pay the ASCAP fee. Cue up the Don Henley.