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The day the music ... spied?

Local musicians say music licensing groups are killing jazz by cracking down on bars. Are there jazz spies among us?

Jazz musician Chris Aschman at Jose Pistola's in Center City. ( TOM GRALISH / Staff Photographer )
Jazz musician Chris Aschman at Jose Pistola's in Center City. ( TOM GRALISH / Staff Photographer )Read more

THREE-FIFTHS OF Chris Aschman's jazz quintet managed to fit onto the tiny stage upstairs at Jose Pistola's, where the crimson glow makes musicians look like they're playing in Amsterdam's red-light district.

Aschman, a 29-year-old trumpet player, stayed on the floor, next to the saxophonist.

Then, the bassist reached overhead and turned off the TV and the audience of 20-somethings switched their attention from NCAA basketball to a funky, odd-time-signature groove driven by a young drummer in a Phillies cap who stomps on the kick drum like he's got something to prove.

The song, called "UCB," short for "Undercover Brother," is an Aschman original, as were nine of the 11 songs his group played at the Center City bar earlier this month.

Most of the room had probably never heard it before. They might never hear it again, at least not at Jose Pistola's, which is canceling its Wednesday music nights due to a licensing dispute with Broadcast Music, Inc., or BMI, one of three major performing-rights organizations that collect fees on behalf of song composers when other people play their music.

"Sadly, this is the last time we'll be here," Aschman said into the microphone as the audience munched on nachos and sipped Allagash White. "It's a very long-winded and complicated situation."

It's not isolated to Pistola's.

Aschman says he's lost four gigs in and around Philadelphia, where it's already difficult to earn a living playing jazz. He and other musicians place the blame partially on performing-rights organizations like BMI, which they say pressure bar owners for royalties for established composers - some of them long deceased - while unintentionally running over the grass-roots music scene like a lawnmower.

"They could basically end my performance career in Philadelphia with some annoying emails," Aschman said. "It's total Mafioso bulls---, man."

BMI says it's only looking out for the interests of the songs' composers or their estates, which are entitled to royalties for their music.

"We want to make sure we're as accurate and fair as possible to understand how they are using that music," said Brian Mullaney, BMI's vice president of licensing.

No more music

Casey Parker, owner of Jose Pistola's, said he had been getting letters from BMI - as well as their competitors, the American Society of Composers, Authors and Publishers (ASCAP) and the Society of European Stage Authors and Composers (SESAC) - for a couple years, but had ignored them, figuring that his bar is not primarily a music venue. He doesn't charge a cover fee at the door and had considered live music a thank-you to his loyal customers.

"There's always something you're getting charged for. If I was just a businessman, I probably would have canceled music a year and a half ago, but I wanted to support the arts community," said Parker, singer in the former 1980's hair-metal tribute band "Welcome to My Face."

Casey, who had been paying bands an average of $300 a night, eventually agreed to pay BMI about $1,000. They were relentless with letters and phone calls, he said.

"I'd get texts from my employees saying, 'It's very important, something about music licenses.' They'd call like four or five times a day to the point that it was, 'I need these people to shut up,' " Parker said of BMI.

He later decided to cancel music altogether. It just didn't make sense financially.

"If I want to have a jazz brunch once a week, I don't think I should have to pay them a grand a year," he said. "I'm paying almost a grand a month to the musicians."

This question keeps coming up: How does BMI, ASCAP and SESAC even know who is playing original music and who is playing their copyrighted jazz standards? Are there jazz spies among us?

Paranoid atmosphere

Local guitarist E. Shawn Qaissaunee, who has pondered that question, said the performing-rights' groups pursuit of fees can create a stifling and paranoid atmosphere.

"We were really looking over our shoulder, like, 'When is the spy going to be in to fine the place,' " Qaissaunee recalled from one of his past gigs. "The owner gave me the impression that they had been intimidating him and that they could be inside."

Qaissaunee, who also plays keyboard and bass, said at a recent gig in Delaware, he'd stuck to original music for almost three hours - not easy - so the owner wouldn't get in trouble with BMI or ASCAP.

So when someone asked him to play a jazz version of an Eric Clapton song, he briefly got suspicious: Was this a jazz spy?

"It's a customer and you don't want to say no," Qaissaunee said. "But I'm thinking, 'Is this the guy? Is this song going to cost the restaurant $500?' Then, I'm like, 'Wait a minute, he's been sitting here all night having dinner.'"

(If there were any jazz spies at Jose Pistola's this month, they blended in well. However, a man in a gray suit appeared briefly by the bar and took a couple photos or video, then disappeared out the back door. But, then again, he did seem to be enjoying the music. Inconclusive.)

Rich Budesa, of the Budesa Brothers, said he lost a gig at a restaurant in New Jersey because the owner said she was getting harassed by BMI.

"She had to lay low, then she stopped live music and it affected us," said Budesa, a jazz organist who works almost every night. "I'm a member of BMI. I didn't think they were going to mess with my living."

BMI responds

Similar stories occasionally make news around the country, but BMI says those cases are relatively rare.

Mullaney, the BMI vice president, said his organization is willing to work with restaurants and music-venue owners to reach a licensing fee that properly compensates the authors of its 8.5 million registered songs.

"That's part of our education process. We're here to help them," Mullaney said. "We don't want an establishment that says, 'We're not going to play music anymore.' That is completely against what we want to see happen. We want to see that music stay alive and well."

Mullaney said a license price can depend on the size of the establishment, how the music is being used and other factors. BMI does conduct research - including monitoring social media - to identify venues that aren't paying the required fees.

If an owner ignores them for long enough, Mullaney said, BMI could, as a last resort, "deploy an employee who goes out in the field" to observe what's happening inside. But, he said, "that's very much at the end of the process."

And they don't call them jazz spies.

Owners who still refuse to pay could end up in court, where they will likely lose, said Lori Landew, a Philadelphia entertainment lawyer at Fox Rothschild. She always advises clients to respond to letters from the performing-rights organizations. Once they add you to the list of possible copyright violators, they are relentless in collecting the fees, she said.

"Eventually, they do send people in to investigate," Landew said.

Are they called jazz spies?

"I don't know," she said. "But that would be a good name."

Long-term impact

Tom Moon, a saxophonist and music critic who has written about this issue, said BMI and ASCAP might want to consider the long-term impact of targeting small bars for playing music that is often more than a half-century old. Music is copyrighted for 70 years after the author's death.

"Are they better off protecting Cole Porter's assets, or are those estates better served by that music living in the world as live music?" Moon asked. "To me, that's the crux of the whole thing."

Qaissaunee, the guitarist, said he understands that the copyright owners are entitled to a fee, but some bars are barely breaking even hosting music once or twice a week. An additional fee can be the deciding factor in scrapping live music altogether. Then everyone loses.

"The clubs are stretching just to pay the musicians themselves. Then there's almost a tax on top of it," he said. "I just don't see the logic in it. I see the BMI and ASCAP guys kind of as thugs."

Aschman received similar stories from other musicians after he vented on Facebook last month about losing his jazz slot at Jose Pistola's. He's not happy these days, but he plans to stay in Philly, keep making music and trying to land new gigs.

"We're just trying to keep music alive," Aschman told the audience in between songs at his last show. "We're not going anywhere. We're just not going to be here anymore."