Archive for June 11th, 2009

11
Jun

Suffolk bar liable for copyright infringement against music performance watchdog ASCAP

By mikeb 2 Comments
Categories: Current Affairs

Via @HRMusic and @PilotNews comes this article about Suffolk bar owner Randy White’s troubles with the American Society of Composers, Authors and Publishers (ASCAP), which distributes licenses for bars, restaurants, TV and radio stations to perform members’ songs, and distributes royalties to songwriters.  In August 07, ASCAP employees visited White’s bar, Randzz,  and caught cover-band performances of several songs written by ASCAP members. The organization later contacted White to purchase a license, which he refused. ASCAP sued, and this past May a judge found White guilty and liable for over $14,000 in damages.

Many bar owners, and no doubt many people in general, are not aware of the licensing fees that businesses have to pay just to have the radio playing in their establishment. Just as sports bars have to pay additional fees to allow public performances of pay-per-view and football, baseball and &c., bars, restaurants, coffee shops are liable for fees if ASCAP/RIAA agents catch loud music playing in a public place.

To ASCAP’s credit, they did approach White to get him to pay for a proper license. He refused, calling the claim ‘bogus’. He apparently thought that it was a scam and that he could just ignore it without ramification, as White never hired a lawyer or responded to the court in any way. (EMI Music et al v. White) He apparently thought if he ignored the lawsuit it would go away. We hope he has better luck with that tactic in the future.

Here’s some other examples of recent lawsuits from ASCAP:

To be fair, ASCAP does allow broadcast radio to be played (see #15) so long as certain circumstances are met, one of which is that there is not a cover to enter the business.

To go back to Mr. White’s lawsuit for a moment, his defense was that the bands themselves should be responsible for licensing, not the bar owners. From ASCAP’s take, and the one the judge apparently sided with, reads:

“Some people mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers. The law says all who participate in, or are responsible for, performances of music are legally responsible. Since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business.”

ASCAP has several agents active in the Hampton Roads area who are responsible for finding all the newly opened bars and making sure that they are in compliance. Mr. White did not do his homework and is now paying the consequences, just like the owner of Rhode Island’s aforementioned Patrick’s Pub. From the judgment, p.15: “‘Courts have repeatedly emphasized that defendants must not be able to sneer in the face of copyright owners and copyright laws.’ […] Rather, the defendant must ‘be put on notice that it costs less to obey the copyright laws than to violate them.’” Further in the document: “Plaintiffs have shown copyright infringement based upon a live band performing three copyrighted songs. The very nature of the kind of infringement suggests irreparable harm. Once a song has been played and heard, it is difficult to conceive of how such harm can be remedied – short of an effort to award damages.”
The law is very clearly on ASCAP’s side, and while we are not as bad off as the UK under the PRS, these lawsuits do point out the broken nature of America’s copyright laws. Indeed, a $1500 a year license seems like a small price for a popular establishment to pay for a year’s worth of all the music they can play. The problem lies with whether or not non-licensed performances of copyrighted music constitutes ‘irreparable harm’ to the copyright holder. One might argue whether or not a person like Beyonce or Tom Petty suffers when garage bands play their songs at dive bars, or whether Alica Keys is slighted when a bed and breakfast plays her CD for ambiance in the lobby. My take is that they do not.

Lets stop for a moment to consider how ASCAP distributes royalties to their members based mainly on the results of radio playlists. Local artists who’s work is being performed but not broadcast locally get excluded from these surveys .This means that of the hundreds of millions of dollars that ASCAP collects for their members, a majority of that money goes to the top played artists on national radio. There is no mechanism in place to guarantee that the money will go to the actual artists who’s work is performed. In fact it is probable that a vast majority of ASCAP members never recieve any substantial royalties.

A similar thing has become apparent to many popular artists in their dealings with record labels. The cost of doing business with them has become increasingly less beneficial to the artist, instead primarily filling the coffers of the label. As artists like Radiohead, Trent Reznor, and the Dresden Doll’s Amanda Palmer have discovered, it is substantially more in their benefit to bypass the record labels completely and deal directly with the fans. Direct web sales and those through iTunes see a significantly larger amount of money back to the performer than via traditional CD sales in brick-and-mortar stores. ASCAP has recognized this and filed a lawsuit in 2007 to make digital downloads ‘public performances’, allowing them to charge licenses to website operators and bloggers who post music on their sites. These fees threatened to shut down sites like music recommendation engine Pandora.com, which almost had to shut down last year over the fees.

Business owners should be aware of the responsiblities that they have. Any live music played in a public place, whether via an open mic night cover song, or a patron’s CD played over the house stereo, may put you at risk of liability against either ASCAP, BMI, or the RIAA. If you are ever approached by agents of these organizations about a license, consult a lawyer and consider paying the license fee each year as a cost of doing business, as it will be cheaper than being found guilty of infringement. Randy White only faced a total of 3 counts, or about $9000.  He could have faced numerous additional counts against him, as the ASCAP catalog totals more than 8.1 million songs.

Most musicians may not be aware of these licensing deals and should be aware. You may want to start checking with your booking agent to make sure that the locations that you play at are licensed. In the few examples that I have given, it has been the establishment owner that has been hit with the lawsuit, but if the ongoing efforts of ASCAP, BMI and the RIAA continue, it will just be a matter of time before they change their tactics to target the performers themselves.

As a warning to music lovers, and also to point out just how broken copyright law is, I want to point out this web page called Unhappy Birthday. Did you know, that if you, as a customer,  sing Happy Birthday in a public restaurant, you are subject to the public performance license? If the establishment that you are in is unlicensed as Randzz is, the owners are subject to fines and penalties. Pretty crazy, isn’t it? The Unhappy Birthday site may be tounge in cheek, but it is pointing out the truth of the matter.

The easiest solution to get out of paying licensing authorities is simply to stop playing their music. If organizations like the RIAA want to continue their heavy handed tactics against their fans, the best thing we can do is to abandon their customers. There is enough free music available from unknown, undiscovered, indie artists to fill the airwaves of a thousand radio stations. There are hundreds of artists creating quality work, releasing their music for free, who would love to get some exposure via public performances. What the big giants like ASCAP have yet to realize is that thier old models don’t work anymore. You will still have the mainstream commercial big names like Brittney and Lady Gaga and the likes, but most musicians these days recognize that the way to survive is not via song sales, but by performing. Touring and merchandise are the bread and butter of the modern-day emerging artist, with direct to the consumer digital downloads or cd sales for the true fans that want to support the artist. You have to give away a lot of music to make it big these days, and the little guys aren’t concerned with whether someone paid the ASCAP licensing to play their music, they’re just happy that it got heard.