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PostPosted: Tue Mar 20, 2018 5:47 pm 
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Brian A wrote:
Word to the wise - if your equipment is in a permanent installation, full or partial, make an inventory list & take pictures. Last signature page: acknowledgement of ownership with your signature & date, including the owner of the club/bar/restaurant sign & date as well, with a statement that he/she certifies that you are the sole owner of the listed equipment (or words to that effect). Have it notarized, original to you & copy to the owner.


Well said Brian. I know of similar horror stories with musicians and bands. They usually turned out okay but sometimes took weeks to clear up, and often at the expense of losing gigs in the process. I don't suppose there's any recourse in these cases, at least none that I'm aware of so as they say ... an ounce of prevention is worth a pound of cure


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PostPosted: Tue Mar 20, 2018 6:09 pm 
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Alan B wrote:
With that attitude, if I was a bar owner, you'd be gone in a heartbeat!

A KJ is an independent contractor who provides a service to the venue. It is your job to bring in customers, keep them coming back, and do what the owner wants. He is the one paying you.

That's pretty much why I didn't bother responding to his last post. Either he's pulling our leg or he's in serious need of therapy. Can't help but wonder though as to what lurks behind the mind of someone who thinks he's in Vegas and is at the same level as Frank Sinatra or who finds humor in a sentence that contains the word "maybe" as an indication that something is not carved in stone.


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PostPosted: Tue Mar 20, 2018 6:19 pm 
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Just as a final remark from me on the matter. There was a case in Bristol County, Massachusetts where a stripper sued the strip club where she worked. While often times strippers are considered independent contractors, her argument was that seeing she had to work according to the club's schedule and was not invoicing the bar she felt that she was more like an employee than an independent contractor and was entitled to back employee benefits. Long story short, she won her case and the club had to pay all of her medicare taxes, half of her social security and a few other things plus her attorney's fees.


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PostPosted: Tue Mar 20, 2018 7:02 pm 
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Bastiat wrote:
Just as a final remark from me on the matter. There was a case in Bristol County, Massachusetts where a stripper sued the strip club where she worked. While often times strippers are considered independent contractors, her argument was that seeing she had to work according to the club's schedule and was not invoicing the bar she felt that she was more like an employee than an independent contractor and was entitled to back employee benefits. Long story short, she won her case and the club had to pay all of her medicare taxes, half of her social security and a few other things plus her attorney's fees.

Yes, that's called the "IRS Seven factor right-to-control test" and it's actually pretty simple in the determination of whether or not a person is an employee or independent contractor.

The closest analogy (since I know how much you love analogies) that I have is the surgeon that removes your child's tonsils. He is an independent contractor in the purest sense.

While you, the customer, have the right to control the outcome of the surgery (the removal of the tonsils) you have no rights in the performance of surgery itself. You cannot tell the doctor where to cut, what to sew, how to stop bleeding etc.... How he performs his contractual obligation is not under your control.

That being said, there's plenty that a bar owner can direct in the entertainment he hires for his club. He can specify sound levels -- how you change your equipment to accommodate those demands are YOUR business. He can specify which songs are disallowed for his club, etc...

Where you draw the lines with your club are again, your business. There's lots of room for latitude on both sides and I think that's the key: The object of the exercise is to make as many people as possible stay happy enough to come back often... and bring their friends. Once you feel that the club is demanding more than they have right to, then you're not obligated to continue working there just as they are not obligated to keep you week after week.

If you allow yourself to be treated like an employee, you will eventually become an employee.


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PostPosted: Tue Mar 20, 2018 7:07 pm 
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This is why I "BOTHERED" quoting you...Maybe, Maybe NOT...LMMFAO

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A KJ is considered a vendor ... maybe. It depends on the circumstances of the services being rendered. For example is the KJ required to provide his services at a specific time or does he have the option to start whenever he feels like it? Does the KJ actually invoice the bar owner or does he just get paid by cash or check at the end of the gig? Being issued a 1099 at the end of the year does not weigh as heavily as you might think in determining employment status. There are other qualifying factors. Also there are two sets of laws that deal with employment, federal and state, and each state has its own set of criteria for establishing employment status.

Copyright law defines a public performance as "a place open to the public or any place where a substantial number of persons outside of a normal circle of a family or its social acquaintances are gathered". Therefore a patron singing in a bar is most definitely and without a doubt considered a performer by law. The copyright code is very clear as to what constitutes a public performance, and what you described falls squarely within that definition. As far as the hot dog guy/girl is concerned, well that depends too. If the hot dog patron is singing in front of the other patrons and there are a substantial number of persons listening to him/her then that could also be considered a public performance. A patron standing in line singing a song is probably not, but actually it's an interesting question which I haven't a clue as to what the answer is but maybe if Jim Harrington is still following this thread then maybe he could provide the answer.

That may or may not be true. Some KJs have a following while some venues have their own following. In any event who cares? What's your point?


Ah, the king of the "Maybe, Maybe Nots."

LMMFAO "Massachusetts." Says it all.


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PostPosted: Wed Mar 21, 2018 8:27 am 
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Bastiat wrote:
gd123 wrote:
A patron in a BAR is no more a PERFORMER than a person standing next to a HOT DOG stand and Singing while waiting for his Hot Dog.

Do you think a Hot Dog stand is going to need PERFORMANCE LICENSES? What is the minimum perimeter for a Hot Dog Vendor in order to determine that, if a Patron buys a hot dog and sings at the same time, he becomes a PERFORMER for the Hot Dog Vendor?


Copyright law defines a public performance as "a place open to the public or any place where a substantial number of persons outside of a normal circle of a family or its social acquaintances are gathered". Therefore a patron singing in a bar is most definitely and without a doubt considered a performer by law. The copyright code is very clear as to what constitutes a public performance, and what you described falls squarely within that definition. As far as the hot dog guy/girl is concerned, well that depends too. If the hot dog patron is singing in front of the other patrons and there are a substantial number of persons listening to him/her then that could also be considered a public performance. A patron standing in line singing a song is probably not, but actually it's an interesting question which I haven't a clue as to what the answer is but maybe if Jim Harrington is still following this thread then maybe he could provide the answer.


"When the right and ability to supervise coalesce with an obvious and direct financial interest in the exploitation of copyrighted materials, the purposes of copyright law may be best effectuated by the imposition of liability upon the beneficiary of that exploitation." Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963).

The test for vicarious liability for copyright infringement requires that the vicarious infringer (the bar owner or hot dog stand owner) (1) have the right and ability to supervise or control the infringing activity, and (2) directly financially benefit from the activity.

A hot dog stand owner, whose stand is set up on a public street, and who does not have any contractual relationship of control over the singer, would fail the first part of the test, even if people came to hear the singer and bought hot dogs as a result. The hot dog stand owner cannot control whether the patron sings while waiting for his hot dog, because it's a public street.

But a bar owner is in a different position. Even though bars are generally places of public accommodation (not all bars, of course, but most), bar owners can and do control what happens on their private property. To the extent that what happens there results in a direct financial benefit, the bar owner can be held liable for copyright infringement.

Of course, if the hot dog stand owner hired someone to sing outside his stand, he could be held liable for any infringement that results, because the contract, not private property rights, gives him control over the performance and--since he's paying for the performance--there is presumably a direct financial benefit from it. Note, by the way, that there need not be a formal, written contract. That contract can be oral and informal, as long as the parties perform according to a meeting of the minds and there is consideration given on both sides. (Money to the performer, entertainment services to the stand owner.)

Likewise, bar owners hire karaoke operators to provide entertainment to their patrons. They do so for the express purpose of getting people to come into the bar to drink. It is difficult to imagine a more direct financial benefit than that. And, gd123's obtuse comments notwithstanding, the bar owner absolutely does have the right and ability to control the performance, even if he does not choose to exercise that right, or even if that right is exercised only at the outset of the relationship, and not throughout it.


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PostPosted: Wed Mar 21, 2018 9:22 am 
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JimHarrington wrote:
A hot dog stand owner, whose stand is set up on a public street, and who does not have any contractual relationship of control over the singer, would fail the first part of the test, even if people came to hear the singer and bought hot dogs as a result. The hot dog stand owner cannot control whether the patron sings while waiting for his hot dog, because it's a public street.

I understood that to be the case and wasn't questioning the exposure of the hot dog stand owner. My question was with regard to whether or not the singer himself was engaging in a public performance if he was standing on the side of the hot dog truck and singing to let's say a crowd that was standing in line, (to which my understanding is that it would be considered a public performance irrespective of the fact that there was no compensation for his performance), as opposed to the case where he was simply standing in line waiting to place his order and his singing was overheard by that same crowd standing in line .... A moot hypothetical for sure as I'm confident in assuming that it's a pretty fair bet that even if both cases were considered to be a public performance, no one would be bringing charges any time soon against a singer in that type of situation. I'm guessing though that in the latter scenario it maybe a matter of intent that would come into play which may exclude it from being a public performance.


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PostPosted: Wed Mar 21, 2018 9:33 am 
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JimHarrington wrote:
And, gd123's obtuse comments notwithstanding


:mrgreen:


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PostPosted: Wed Mar 21, 2018 9:38 am 
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Bastiat wrote:
I understood that to be the case and wasn't questioning the exposure of the hot dog stand owner. My question was with regard to whether or not the singer himself was engaging in a public performance if he was standing on the side of the hot dog truck and singing to let's say a crowd that was standing in line, (to which my understanding is that it would be considered a public performance irrespective of the fact that there was no compensation for his performance), as opposed to the case where he was simply standing in line waiting to place his order and his singing was overheard by that same crowd standing in line .... A moot hypothetical for sure as I'm confident in assuming that it's a pretty fair bet that even if both cases were considered to be a public performance, no one would be bringing charges any time soon against a singer in that type of situation. I'm guessing though that in the latter scenario it maybe a matter of intent that would come into play which may exclude it from being a public performance.


I misapprehended your question. Yes, it would be considered a public performance. But it would take an unusual confluence of factors for a music publisher to sue for the infringement. Intent is irrelevant to copyright infringement--it's relevant only to damages, in that damages for innocent infringement may be remitted down to $200 per work infringed, rather than the usual statutory minimum of $750 per work, and in that damages for willful infringement may be increased to as much as $150,000 per work infringed, rather than the usual statutory maximum of $30,000 per work.


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PostPosted: Wed Mar 21, 2018 10:33 am 
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c. staley wrote:
Yes, that's called the "IRS Seven factor right-to-control test" and it's actually pretty simple in the determination of whether or not a person is an employee or independent contractor.

I'm not familiar with the test but what I can say from my own experience is that while the IRS test maybe simple, that's not necessarily the final determination. For example, one of my sub-contractors sued me for $3 million for a workplace injury claiming that he was an employee. The problem was that the corporation for which he provided his services never had employees and therefore did not carry Workman's Comp. There was only one corporation of the 5 of which I was the major and sole stockholder that had employees, and was where the Workman's Comp was carried. In this case the IRS considered this contractor to be just that, but the Commonwealth of Massachusetts did not. Evidently and according to my attorney that was handling the case, Massachusetts is the only state in the union that considers by default, sub-contractors to be employees and the burden of proof to prove otherwise rests with the defendant.

c. staley wrote:
While you, the customer, have the right to control the outcome of the surgery (the removal of the tonsils) you have no rights in the performance of surgery itself. You cannot tell the doctor where to cut, what to sew, how to stop bleeding etc.... How he performs his contractual obligation is not under your control.

Anytime I hear use of the word "right", I get a bit nervous. This is another one of those political points of view which I have no desire to feed, but to briefly clarify what I mean is to say that many people confuse rights with privileges. Then there's the concept of positive rights versus negative rights the latter to which I subscribe, and while I do recognize the existence of the former, I do not recognize its legitimacy. As to what the law states with regard to your scenario I have no knowledge but I suspect you could be correct as the state obviously owns you and has a right to your property including your body and your labor. So my point is that I believe (contrary to what the state believes) that I alone have a right to my own body to include telling the surgeon where to cut, sew or perform any other procedure UNLESS I contractually forfeit that right. If there are laws to the contrary then my natural rights (negative rights) have been violated and would therefore respectfully diagree that I have no rights in the performance of the surgery.

As to the rest of your post, I wholeheartedly agree, but would add two things. a) That it's not in anyone's best interest to engage in a business relationship that is adversarial in nature. It's much more productive to engage in a collaborative one that exploits a mutually beneficial agreement aimed at a single goal which in the case of the venue-kj relationship is to provide the best entertainment experience to its patrons, and b) having worked in bars and clubs for a good part of my life (as a musician of course, I'm not a KJ), I also am aware of the fact that bar owners can at times be fairly short-sighted and not always do things even within their own best interest. This is where a real professional with a good beside manner has the opportunity to display his people skills, in knowing when, where and how to approach the bar owner and persuade him/her to employ best practices in achieving the same goals.


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PostPosted: Thu Mar 22, 2018 3:52 am 
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Bastiat wrote:
c. staley wrote:
While you, the customer, have the right to control the outcome of the surgery (the removal of the tonsils) you have no rights in the performance of surgery itself. You cannot tell the doctor where to cut, what to sew, how to stop bleeding etc.... How he performs his contractual obligation is not under your control.

Anytime I hear use of the word "right", I get a bit nervous. This is another one of those political points of view which I have no desire to feed, but to briefly clarify what I mean is to say that many people confuse rights with privileges. Then there's the concept of positive rights versus negative rights the latter to which I subscribe, and while I do recognize the existence of the former, I do not recognize its legitimacy. As to what the law states with regard to your scenario I have no knowledge but I suspect you could be correct as the state obviously owns you and has a right to your property including your body and your labor. So my point is that I believe (contrary to what the state believes) that I alone have a right to my own body to include telling the surgeon where to cut, sew or perform any other procedure UNLESS I contractually forfeit that right. If there are laws to the contrary then my natural rights (negative rights) have been violated and would therefore respectfully disagree that I have no rights in the performance of the surgery.

The scenario is not your tonsils, but your child's tonsils. In any case, you do not have the ability/rights to control the details of surgery -- unless you want the ensuing malpractice suit by directing what would now be your "surgical employee." No respecting doctor that I've ever met would legally expose themselves to any kind of malpractice if they were to allow you to direct their surgical details, and in fact, if you knew what to do, why not just do it yourself? Except performing your own hernia repair would present a challenge..

The ONLY situation where I believe you would have any kind of say at all -- and it still wouldn't involve the details of the surgery itself but only the outcome, -- is an elective/cosmetic/plastic surgery. People have added horns, boobs, butt implants, tummy tucks, nose jobs, etc, to themselves by way of a plastic surgeon.

Even then, they can only control the desired outcome, not the details required to achieve that outcome.


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PostPosted: Thu Mar 22, 2018 8:55 am 
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And Chip states it EXACTLY correct.

Again, my business has NOTHING to do with the Bar's Business, no matter how much an AMBULANCE CHASER wants to make it so.

If I ALLOW a Bar to influence MY Business, I open myself to liability beyond my Quality Control.

It's MY WAY or the HIGHWAY...is that "Obtuse" enough for your simple-minded self?


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PostPosted: Thu Mar 22, 2018 10:43 am 
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gd123 wrote:
And Chip states it EXACTLY correct.

Again, my business has NOTHING to do with the Bar's Business, no matter how much an AMBULANCE CHASER wants to make it so.

If I ALLOW a Bar to influence MY Business, I open myself to liability beyond my Quality Control.

It's MY WAY or the HIGHWAY...is that "Obtuse" enough for your simple-minded self?


I ask you again, who pays you?


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PostPosted: Thu Mar 22, 2018 10:48 am 
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gd123 wrote:
It's MY WAY or the HIGHWAY...is that "Obtuse" enough for your simple-minded self?

You are the most UNPROFESSIONAL karaoke host (if you really are one) I've ever seen. With your attitude, I'm surprised anyone would even hire you. You obviously don't care about having a mutually beneficial working relationship with your employer, which confirms that you are the least bit a professional.

I have around 25 years of hosting experience. So do many of the regulars on this forum. And I'm sure that the one thing we could all agree on is that with your attitude, you have no business hosting. You are self-centered and don't really care about working with the bar owner, even though they call the shots. This is NOT how a professional behaves.

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PostPosted: Thu Mar 22, 2018 12:04 pm 
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c. staley wrote:
The scenario is not your tonsils, but your child's tonsils. In any case, you do not have the ability/rights to control the details of surgery -- unless you want the ensuing malpractice suit by directing what would now be your "surgical employee." No respecting doctor that I've ever met would legally expose themselves to any kind of malpractice if they were to allow you to direct their surgical details, and in fact, if you knew what to do, why not just do it yourself? Except performing your own hernia repair would present a challenge..
My tonsils and my child's tonsils (assuming the child has not yet attained the age of reason) are two entirely different animals, and sorry but I missed that part in your original post. Either way I don't see this as a "rights" issue. At least not the way you framed the scenario. As you've pointed out, I don't think there's a doctor that would ever agree to having the patient direct him as to how he'll perform a medical procedure, not to mention that he's bound by his Hippocratic Oath to employ best practices. I'm guessing that before a doctor would perform any type of surgery there would be a consent form (contract) outlining the doctor's responsibilities, and most surely one of those responsibilities would not be to take directions on how to perform that surgery from the patient.

As far as horns go .... well my 4th grade teacher Sister Joyce always accused me of having horns so no medical procedure necessary.


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PostPosted: Thu Mar 22, 2018 6:33 pm 
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Quote:
I'm guessing that before a doctor would perform any type of surgery there would be a consent form (contract) outlining the doctor's responsibilities, and most surely one of those responsibilities would not be to take directions on how to perform that surgery from the patient.


Uh Huh...the Doctor's Way Or The Highway...imagine that.

What? And, the use of the word "Contract" in the very same POST.

Well, I think that is just unconscionable, don't you?

At the very least, OBTUSE and, of course, UNPROFESSIONAL.

That Doctor MUST have an attitude that is counter-productive to the Medical Profession. After all, shouldn't the "Doctor" be striking a "Balance" between the Legal Guardian and what is to be done in the Operating Room?

You know, since the "Legal Guardian" is PAYING the Doctor.

Hummm, I wonder who Pays the Doctor, yet, the "Legal Guardian," once having PAID the Doctor, has NO INPUT AS TO HOW THE, remember...ALREADY PAID DOCTOR...by whom...the LEGAL GUARDIAN, "Procedure" is to be MEDICALLY performed.

LMMFAO...oh the IRONY of the analogy.
#Medical
#Ambulance
#Chaser


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PostPosted: Fri Mar 23, 2018 5:53 am 
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gd123 wrote:
Uh Huh...the Doctor's Way Or The Highway...imagine that.

This is my opinion...

I really feel that it would be in your best interest if you seek Cognitive Behavioral Therapy.

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PostPosted: Fri Mar 23, 2018 5:55 am 
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Alan B wrote:
gd123 wrote:
It's MY WAY or the HIGHWAY...is that "Obtuse" enough for your simple-minded self?

You are the most UNPROFESSIONAL karaoke host (if you really are one) I've ever seen. With your attitude, I'm surprised anyone would even hire you. You obviously don't care about having a mutually beneficial working relationship with your employer, which confirms that you are the least bit a professional.

I have around 25 years of hosting experience. So do many of the regulars on this forum. And I'm sure that the one thing we could all agree on is that with your attitude, you have no business hosting. You are self-centered and don't really care about working with the bar owner, even though they call the shots. This is NOT how a professional behaves.

Years of experience are different for everyone but I can tell you this:
gd123 has been a karaoke host for years (I've known him only since 2005) and has for years straight, been chosen hands-down as the top rated karaoke show in a city with a population larger than Detroit.

You may not like the attitude on this forum or business practices, but I can tell you that he knows what he's doing and it has been working for years.

The "unprofessional host" end up unemployed, he can pick 'n choose his jobs from a waiting list.

Just sayin'


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PostPosted: Fri Mar 23, 2018 1:02 pm 
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Can someone check these guy for permits?
Does the IRS know this is going on?
Please Lord, stop the insanity..





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