Live Music Silenced at Luke's Lounge

In November 2010, Luke's Lounge was hopping with the sounds of Clouds and Cannons. About 160 fans came to the popular nightspot to see the band, formed by Dixon natives, and were ecstatic to see an amped-up performance in their hometown.

Clouds and Cannons' homecoming – the band relocated several years ago to the Bay Area – was bittersweet because it would be the final time Luke's Lounge would allow live music.

The bar no longer hosts live performances because of the cost of license fees that The American Society of Composers, Authors and Publishers (ASCAP) demands for live performances.

It’s a fee that Luke’s Lounge owner Nate Luke said he is no longer willing to pay.

ASCAP is an organization that represents 400,000 or more U.S. composers, songwriters, lyricists, and music publishers of every kind of music, according to its web site.

ASCAP said it protects its members through licensing and collecting royalties for public performances of their work. Known among musicians as “the collection society,” ASCAP also said it makes giving and obtaining permission to perform music “simple for both creators and users of music.”

“Simple, yeah, maybe,” Luke said. “Simply outrageous.”

The misunderstanding with ASCAP, based on what Luke calls “ASCAP's highhandedness,” began on a quiet afternoon about four years ago at the bar.

His mom, Pam Luke, was tending bar alone when two ASCAP representatives “came in the front door like they owned the place,” Luke said.

They informed her that Luke's Lounge would have to start paying ASCAP licensing fees or stop the live music shows. Pam Luke remembers she went “into a bit of a panic mode.” She called her son.

“So, I just dropped everything and raced on down to my place of business, not knowing what to think,” Nate Luke said.

At first, Luke agreed to pay the ASCAP fees of $197 per year through December 2010. This year, Luke said he received notification from ASCAP that his license fee would increase to $485.

A dramatic fee increase

In 2006, the new simplified ASCAP licensing fee rate for Luke's Lounge was based on the maximum number of occupants allowed by Dixon's Fire Code and scheduling live bands three times or less per week.

Based on those numbers, ASCAP’s Senior Vice President of Licensing Vincent Candilora roughly calculated Luke's Lounge's yearly ASCAP license fee at $451.

The ASCAP rate for live performances being $4.51 per year, multiplied by 100, a rough estimate of the maximum number of occupants allowed at Luke's Lounge by the Dixon Fire Code, according to Candilora.

It’s near the $485 Luke said ASCAP wanted for January, 2011.

“Fire-code-allowed occupancy is an objective number,” Candilora said. “If we went by seating capacity, well, that can be easily changed, just move some chairs out when our people come around.”

 Luke's Lounge's much lower ASCAP licensing fee was probably due to undercounting the seating capacity, Candilora said.

Drawing attention

Luke’s Lounge came under the radar of ASCAP after advertising in local papers Luke said.

During his previous tenure as owner, Pete Solis had hosted bands at the Kara-Lin too. The Kara-Lin was the previous name of what is now called Luke's Lounge. The name was changed when Luke bought it from Solis. 

But Solis didn't advertise his live music performances.

“It was all word-of-mouth,” Luke said. “And, that's all Pete needed, 'cause they were all Dixon bands and everybody knew 'em around town anyway.”

By contrast, Luke booked bands from Davis, Sacramento and the Bay Area and bought advertising in Dixon and Davis newspapers.

“They do their research, combing through even little towns like Dixon,” Luke said. “That's their business.”

Prospecting for new clients in small northern California towns is a relatively new ASCAP strategy according to Candilora.

When the economy soured in 2008, many ASCAP-licensed entertainment establishments went out of business. In response, Candilora said, ASCAP stepped up its recruitment efforts, moving into small towns.

Candilora said: “We monitor things like the issuing of new liquor licenses – you can be pretty sure if an establishment is serving liquor, there's going to be some music being played – and advertising in newspapers, or hotel city guide publications.”

Once a venue is identified as hosting bands which probably are playing songs protected by ASCAP (some 8.5 million and growing all the time), Candilora said the standard practice is to send letters and attempt to contact the venue owner by phone.

Asked how the encounter between the ASCAP licensing team which visited Luke's Lounge in 2006 could have given rise to misunderstanding and resulted in Luke's mom going into “panic mode,” Candilora replied, “I wish it would have come up to my level.”

“There's a lot of turnover in that job, which we classify as 'area licensing manager,'” he said.

ASCAP area licensing managers deal with a lot of hostility. “Some have been spit on, threatened, had their tires slashed,” said Candilora. “But as far as any one representing ASCAP acting unprofessionally out in the field, I won't stand for that. I'll terminate them.”

Candilora said he wished to speak with Nate Luke personally, to find out the exact date of the encounter as well as the ASCAP personnel and the circumstances involved.

 “I'm over it; my mom is too,” Luke said. “That was a long time ago. Thing I care about now, is if they're going to bring the licensing fee down. I've already played their games. ASCAP's a big corporation. They won't negotiate.”

Informed that Luke's Lounge had, previous to the last show back on Nov. 20, 2010, only staged live music once or twice a month, Candilora said, “Makes no difference. Of course, once we sign them up at that level, we encourage them to take full advantage of staging the three performances a week we allow.”

Candilora went on to say that ASCAP would not consider an exception or special reduced rate for a bar that stages only two performances a month.

“If ASCAP won't negotiate that licensing fee, then I'm still not going to have any live music at Luke's Lounge, just to spite them,” Luke said. “That rise from $197 a year to $485 is ridiculous. ASCAP needs to know they can't just steamroll small businesses and get away with it.”

The licensing fee is not all that stands in the way of Luke's Lounge rejoining ASCAP. Even if Luke's Lounge were to stage local bands that signed waivers to the effect that they would not play any songs in ASCAP's repertory, there's always the chance, said Candilora, that they might take requests.

“Hey, we know it happens. It gets late, band members maybe have a few beers,” he said. “Some guy in the audience wants them to play one of our songs. Well, that's not allowed. Or what happens when they take a break? Is there just going to be dead silence there in Luke's Lounge between sets? No. Luke will probably play some CDs with our songs on them. Which is why waivers don't work.”

Luke said he doesn't need the stress. Candilora admitted that on occasion ASCAP sends representatives “undercover” to establishments like Luke's Lounge which have not paid ASCAP licensing fees. If these representatives were to document that a copyrighted song from the ASCAP repertory was played by a band at Luke's Lounge, ASCAP would sue.

“Oh, they could put me out of business if they sued,” said Luke.

“Sure, we'd sue,” said Candilora, “If Luke's Lounge lets bands play our copyrighted songs without paying the licensing fee, that's the same thing as if someone goes into Tower Records and shoplifts CDs. It's stealing.”

 “It's not clear to me how this benefits anyone, except some lawyers,” said Luke.

Live music is only currently performed at Luke's Lounge during "Open Mic Nights." Luke makes sure beforehand only original music is going to be played. During breaks customers play tunes off the Internet jukebox.

"Now, at least, I don't have to look over my shoulder and wonder if somebody hanging out in the bar is actually looking for a chance to turn me in and get sued by ASCAP." Luke said.