Sounds of Silence

ASCAP's legal threats kill a thriving local music scene

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."

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