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HOW ONE INDEPENDENT MUSICIAN DEFEATED BMI
"Congressman McHugh had forwarded my letter to the United States Copyright Office
and had elicited a response from Marilyn Kretsinger, Assistant General Counsel.
I should not have been surprised. John McHugh had stood up for north country
artists before, and no doubt he will do it again. Marilyn Kretsinger upheld
each of my contentions. In her words, "BMI has the authority to issue a
license only for those songs that are in its catalogue of representation."
If the performance venue does not "publicly perform songs represented by
BMI," then a BMI license is not needed. She further stated: "With
respect to the musical compositions that Mr. Phillips has authored, no performance
license is necessary since Mr. Phillips is the copyright owner of those songs."
With respect to traditional folk songs in the public domain, if I am "not
performing a copyrighted arrangement of a public domain folk song, then a BMI
license is not required.
The opinion has far-reaching implications for independent musicians and for
the entrepreneurs who hire them. No venue is in need of a performance license
unless one or more of its musicians are performing compositions or arrangements
copyrighted and licensed through ASCAP, BMI or SESAC. The copyright owner enjoys
exclusive performance rights and, therefore, the exclusive right to profit from
their performance. The point is so obvious that it has never been litigated,
which makes this a landmark decision. The full texts of the Copyright Office
opinion and all related correspondence are available online at
http://www.northnet.org/minstrel, Appendix BMI."
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