ASCAP -- the American Society for Composers, Authors, and Publishers -- is one of the major organizations that monitors and regulates public performances of copyrighted music. Copyright law entitles composers to a royalty when their music is performed in public, whether it be on the radio, performed by a cover band, or played over loudspeakers in a supermarket or bar, or even in an elevator. Composers can register their music with ASCAP, who then administrates royalty collection. When the composer's tune is played, ASCAP collects a fee from the venue performing it and delivers it, minus administrative costs, to the composer.
For venues wishing to play copyrighted music for their visitors, ASCAP typically offers a package deal where, for an annual fee, subscribers can play as much of their members' music as they wish. The fee is scaled according to the number of people who will be present at the venue and, therefore, will be exposed to the music. "It's very reasonable," says Wilcox. "You'd probably spend more per month on heating and electricity than for one of our licenses."
Burning Man, however, has never obtained a performance license, says Wilcox. Music is one of the staples of the week-long event, with mostly electronic music playing around the clock. 25,000 people are estimated to have attended Burning Man last year alone. That size concerns Wilcox. "Sometimes we'll let smaller venues like nightclubs slide on past royalties, provided they obtain a current license. But this is just too big to ignore."
According to Wilcox, Burning Man organizers had rebuffed previous ASCAP attempts to secure a royalty agreement, claiming that the organization itself does not provide the music. All music is brought in by the visitors. Further, Burning Man is expressly non-commerical -- the use of money of any kind during the event is forbidden. However, says Wilcox, that doesn't matter. "Whether the venue itself makes any money or not, the artist's music was still used in a large venue, and he or she deserves to be paid for it. Our job is to make sure that happens."
As for whether Burning Man itself should be held responsible for its visitors's actions, Wilcox asserts that it should be Burning Man's responsibilty to set policy on the matter -- either the music should be paid for, or it shouldn't be played. However, he concedes the law leaves the event organizers' role unclear. "The recent Grokster case made the issue of contributory infringement even murkier than it was before. Naturally, we would prefer to resolve the issue amicably."
But Burning Man representatives characterized ASCAP's position as ill-conceived. "First, contributory infringement requires we actively participate or encourage the infringing activity. That is absolutely not happening," said Jeremy Eldrad, a representative for the event. "Second, most of what gets played is techno, trance, and other electronica, 95% of which is not registered with ASCAP. So ASCAP has no right to demand royalties for music that isn't even theirs."
ASCAP came under fire in 1996 for demanding performance fees from the Girl Scouts of the USA for the songs their members sing around the campfire. Public outrage caused ASCAP to backpedal on its position, but Eldrad says ASCAP's threats against Burning Man are similar in spirit. "It's absurd to expect the Girl Scouts or us or anyone to police people to make sure they're not violating some copyright."
It's also not exactly clear, says Eldrad, how Burning man would license ASCAP's music. "ASCAP has over 100 different licensing structures, depending on the venue type. Burning Man doesn't really fit into any of them." Indeed, a look at ASCAP's list of license types suggests several possibilities: Campground, exposition, festival, laser show -- even circus. Eldrad says none of these fit Burning Man's unique character.
Wilcox says that's no barrier. "We're more than happy to sit down with the organizers and hammer out an agreement that's tailored especially for their event." Wilcox was evasive when asked if Burning Man would be made to pay for past years' performances, but hinted that ASCAP's position on the issue would be shaped by how readily Burning Man came to the negotiating table. But however they choose to do it, says Wilcox, "It needs to be done. And soon."
Burning Man takes place this year from August 30 through September 6 in the Nevada desert outside Gerlach, near Reno.