Facing the music ... and the bill
Mar 03, 2013 (Florence Morning News - McClatchy-Tribune Information Services via COMTEX) --
FLORENCE, S.C. -- A Florence restaurant and bar is one of many across the country to recently come under fire for playing copyrighted music without the proper licensing.
Broadcast Music Inc. (BMI), the largest performing right organization in America, has sued hundreds of establishments across the country -- including Southern Hops Brewing Company in Florence -- for playing copyrighted songs without the proper license, or for failing to pay license fees.
A performance rights organization (PRO) provides intermediary functions, particularly the collection of royalties, between copyright holders and parties who wish to use copyrighted works publicly in locations such as bars, gyms, shopping malls and dining venues.
There are three main performing right organizations in America -- BMI, American Society of Composers, Authors and Publishers (ASCAP) and SESAC. Each represents different artists, with BMI alone representing 550,000 copyright owners and 7.5 million musical works.
In order to have those artists' songs played in a public establishment -- whether by a live band or on the jukebox -- owners have to pay licensing fees to these organizations. Even fitness instructors at health clubs have been notified by PROs of their need for licensing to use copyrighted music in their group workout classes.
Those who do not pay may never get caught. But if they do, they are looking at hefty penalties -- anywhere between $750 and $30,000 per song violation.
In the Southern Hops case, BMI is suing over seven copyrighted songs allegedly played in the establishment on June 16, 2012. Those include songs by Paul Simon, the Rolling Stones and Poison. The infractions, if proven, could cost the restaurant about $2,000 per song.
BMI executives refused to comment specifically on the suit, but a BMI spokeswoman said, "Businesses that play music publicly, whether live or recorded within the Broadcast Music, Inc. (BMI) Repertoire, are required to have a BMI license unless they are otherwise exempt under copyright law. BMI actively pursues licenses with such businesses."
The spokeswoman said BMI advocates for the value of music, and for the rights of the songwriters, composers, and publishers who create music. She said her organization makes every possible effort to avoid filing suit against an establishment.
"The customers that have a BMI license and would like to continue to play music publicly need to renew their BMI license if they would like to continue playing music publicly under the U.S. Copyright Law," the spokeswoman said. "Therefore, when a team member of BMI reaches out to one of our customers as a part of regular practice to have the customer renew the license, if the customer refuses to renew or obtain the license -- this may need to go to a rate court as BMI makes every effort to solve the problem on our own. BMI makes dozens upon dozens of phone calls, mails dozens of letters, and even tries to meet in person with customers.
Shane Brannon, owner of Apple Annie's, said although he does not necessarily agree with the system, he pays. The fees total between $1, 200 to $1,500 a year to the three organizations.
"I treat it like another utility bill," Brannon said. "They look at it like the bar is generating a profit and the band is just here to help generate that profit so we're responsible for the fees. Am I making money hand over fist because some band plays another John Mayer song No, but it's just one of those things. It's like indoor plumbing and air condition -- you gotta have 'em."
Tim Norwood, owner of Victor's Bistro, said he learned about licensing fees within weeks of getting into the restaurant business.
"I went through it 10 years ago," said Norwood. "They came in asking for these fees, and I didn't know what they were talking about. I called the South Carolina Hospitality Association and asked them about it, and they said, 'Yep, there are three of them, and you gotta pay 'em.' I know there have been all kinds of lawsuits over it, and every time, they've had the right to those fees. It's absurd, but there's nothing anybody can do. You just gotta pay them."
According to industry insiders, BMI and the other PROs have "spies" who are paid to go to establishments and document infractions. The spies then testify in court, making a PRO lawsuit nearly impossible to beat. BMI files between 75 to 125 lawsuits a year. Most of those settle, but in cases that do wind up in court, BMI says it has never lost.
"The way I look at it is you've basically got a few options -- one, you can pay the fees like they ask you too. Two, you can have bands who play nothing but their own original music. Three, you can track down the singers who own these songs and try to get their personal permission or four, you can not pay and hope you don't get caught," Brannon said. "But that last one's a big risk, because if they do catch you, you're going to be in big trouble. In the end, it's just easier to go ahead and pay them."
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