You'd Better Think!

For those of you who have never visited “Think,” it is a favorite of the NYU community that offers freshly brewed coffee, an assortment of food, and an atmosphere conducive to working or conversing alongside dozens of other café-goers. Up until a few days ago, I would often stop by to grab a snack, sit down with a book, meet friends for a game of scrabble, or swing by to hear music.

A few weeks ago, my good friend and band-mate asked me to play a benefit show at “Think” for the NYU China Care organization. I eagerly accepted, knowing that our performance would be helpful to the organization and that our band could attract many friends and fans to the popular establishment. Furthermore, I had seen other acts perform at “Think” and had always considered it as an appropriate venue for the material performed by my band, The Five Foot Club. Our repertoire typically consists of original singer/songwriter folky/bluesy tunes as well as a series of popular cover tunes arranged for our distinct instrumentation of acoustic guitar, electric bass, and vocals. For the past few weeks, my band-mate and I had prepared for the performance by picking crowd-pleasing cover material that would compliment our original music and create enjoyment and participation throughout the audience.

Wednesday evening finally arrived and as I sat in the audience, listening to the first act play a set of original music (with a cover or two thrown in), I couldn’t help but be excited by the fact that many friends had already shown and that The Five Foot Club would be performing next. Once we began our set, shifting between originals, covers, and anecdotes, everything seemed to be going ok (once we worked out a few kinks in the sound system). Midway through our performance, however, we were interrupted by the organizers of the China Care event. While standing in front of the audience, the organizers were obliged to tell us that we were no longer allowed to perform if we played another cover song. I immediately was taken aback by this statement and asked what sparked this interruption, only to find out that the manager of “Think” had sternly addressed the organizers of the event and had told them to prohibit us from playing cover songs. My band-mate and I were forced to comply to the wishes of the manager, which required us to rearrange our planned set, leave out 1/3 of our material, and deprive the audience of hearing certain ‘trademark’ songs that we were known to play.

After our performance, I mentioned to the organizers of the event that I wished to speak to the manager regarding the interference and for an answer as to why we were prohibited from playing covers. As a Music Business major at NYU, I was certain that because “Think” always had music playing over the speakers on every occasion that I stepped foot in the venue, they definitely had performance licenses from the Performance Rights Organizations (ASCAP, BMI, and SESAC). The manager told me that our actions were “a liability with ASCAP,” to which I responded “don’t you play music over the speakers here all of the time? Both performances (live and recorded) are covered by a license that you get from ASCAP.” The manager disagreed with me and said that the owner of the establishment was very clear when he said that bands were not allowed to play “unoriginal music.” I found this statement to be particularly odd, especially because almost all bands, even those who have full sets of original material, tend to throw in a cover song here and there. I proceeded to ask the manager, who mentioned that she takes care of all the booking, “so, if a band plays an entire set of original music and then performs one cover, you wouldn’t book them?” To which she responded “I don’t book acts that play un-original music.” She continued by discussing how it was wrong for The Five Foot Club to play other people’s music with the intention of soliciting money and profiting from the performance. Furthermore, she said that had she known that we would perform covers, we she wouldn’t have allowed us to play in the first place.

I took issue with almost every statement she made because:
a) We were playing a benefit concert and were not getting paid for the performance;
b) The organizers of the event asked for, but did not require, donations—they were not specifically soliciting money from people who either attended the performance or who happened to be in the café at the time;
c) The act before us and after us also played original music and covers (for example, The Five Foot club performed the Beatles tune “Oh! Darling” and the act following us performed “Let It Be”) and yet we were the only act asked to stop playing;
d) It is unreasonable (and somewhat impossible) to only book bands who solely play original music;
e) The Five Foot Club packed the house and probably generated more revenue for “Think” in the sale of food and beverages than we did in donations for China Care.
f) There is no reason why we wouldn’t have been allowed to perform covers, assuming “Think” had a license from the PRO’s. Recorded music is constantly being performed at “Think” and I have seen other live performances, such as jazz ensembles, that have played “un-original music.” The only reason why we would have been a “liability” is if “Think” did not legally have permission to have music played in the establishment.
g) The chances that a representative from a PRO had been present during our 45 minute set is slim-to-none. If you consider the hours of operation (throughout which music is always playing) in comparison to the amount of time we performed covers, statistically, our actions would not have mattered at all.
h) I was both insulted and embarrassed in front of my peers when we were asked to stop playing in the middle of our set. I also did not appreciate the manager’s tone or her uneducated and irrational responses to my questions.

Unfortunately, similar situations have happened on numerous accounts and have created a “chilling effect” on the live music industry. Venues have become afraid of liability issues and the threat of legal action by the Performing Rights Organizations. Managers, owners, and booking agents are often ill- or uninformed of the terms of performance licenses. Artists are dissuaded from booking shows at certain venues because of the possibility of something like this arising. Consumers are being deprived of live music… an art form that has not only been present for hundred, if not thousands, of years but has helped sustain various communities. That said, what can we do about it? What can we, as consumers, producers, owners, managers, etc. do to keep live music alive? Is there any way to lessen this “chilling effect” and reinstitute live music as a worthwhile experience? I’d love to hear your thoughts, questions, comments, and opinions. In the meantime, there are many other café’s in the Village that would appreciate our business.