Pay up! $30,450 for illegally playing four songs

[ITGITC]

 

Here is a top story in my town today.

 

Nothing we didn't already know, but I thought you all would find it interesting.

 

KLONK for the story

 

Broadcast Music Incorporated sued Fosters American Grille, which recently closed in Raleighs (North Carolina, USA) Cameron Village. They have been ordered to pay $30,450 for illegally playing four songs. The federal judge also ordered the restaurants owners to pay about $10,700 in attorneys fees.

 

BMI represents about 475,000 songwriters, composers and music publishers. It collects license fees from businesses that use music, which it then distributes as royalties to the musical creators and copyright owners it represents. BMI says its current licensing fee is $6,060 per year.

 

Licensing companies, such as BMI, hire people to go into bars, restaurants and clubs and record the music that is played or performed.

 

WRAL News found a total of 38 suits filed across the country this year.

 

Copyright infringement not only pertains to music through a stereo system. If a restaurant or bar has a live band, the restaurant can be fined if the musician plays unlicensed material.

 

[Skinny]

Damn!

[iLaw]

Broadcast Music Incorporated sued Fosters American Grille, which recently closed in Raleighs (North Carolina, USA) Cameron Village. They have been ordered to pay $30,450 for illegally playing four songs.

 

That kind of reporting drives me crazy. They were not ordered to pay $30,450 for "illegally playing four songs." It is my understanding that they were ordered to pay $30,450 for copyright infringement stemming from their operation (for years) of a restaurant that used unlicensed BMI-listed music to entice paying customers into their establishment. The four songs were merely evidence of infringement needed to establish a claim in court proceedings. A claim that the restaurant could have avoided if, at any time before the case was filed, they had settled up with BMI. That, of course, would have required money, which it sounds like they didn't have. And still don't. And probably never will.

 

WRAL News makes it sound like they're being penalized $7,600 per song (plus attorneys' fees!) for four measly songs. Makes for an eye-catching headline, but an ill-informed reader.

 

Larry.

[ITGITC]

 

Larry -

 

I am wondering if we musicians should be asking the managers at restaurants & bars if they have paid the license required for bands to play covers in their establishment.

 

Paying this license is not up to each band, correct?

 

Is it possible that bandmembers could be fined?

 

Tom

 

[FJR]

Is it possible that bandmembers could be fined?

 

No, they know (from experience) that musicians dont have any money!

[iLaw]

Is it possible that bandmembers could be fined?

No, they know (from experience) that musicians dont have any money!

 

Foster's American Grill didn't have any money and look where it got them!

 

Seriously, one situation I can realistically imagine where a performing rights organization like BMI might go after a (covers) band itself would be if the band is also the business enterprise that is offering the performance to the public, such as a band that organizes its own performance, hires the venue, etc. And of course there are (admittedly rare) circumstances where the performer (band or otherwise) is also the club or restaurant owner.

 

That said, I can't recall a situation where a PRO actually did go after a band. No time to do the research right now ...

 

Larry.

 

[ProfD]

Seriously doubt that PROs sue cover bands and individuals. If so, they will be extremely busy with YouTube.

 

As Larry mentioned, the PROs go after businesses playing unlicensed music, live or over a sound system i.e. not getting their cut.

 

Otherwise, songwriters and publishing companies are responsible for hiring attorneys to chase down instances of copyright infringement.

 

Now, i'm wondering how many YouTubers have gotten enough hits doing an unlicensed cover tune to raise the ire of a songwriter/publisher.

[Baldwin Funster]

This trend could lead to bars shifting to original music and banning coverbands....

 

....yeah, right.

[Cygnus64]

From the article:

BMI says its current licensing fee is $6,060 per year.

 

Wow, that's high. If ASCAP and SESAC are near that price, I really can't blame the guy for not paying. I can see a grand or two a year, but 6K for just one? How much of that goes to songwriters, 5 bucks? Insane.

[Cygnus64]

 

Now, i'm wondering how many YouTubers have gotten enough hits doing an unlicensed cover tune to raise the ire of a songwriter/publisher.

 

Apparently, 13 hits is all it takes to get the labels to pull the song. Check out this.

 

 

No tunes. And yes, that's my adorable great-nephew.

[therealvicz]

From the article:

BMI says its current licensing fee is $6,060 per year.

 

Wow, that's high. If ASCAP and SESAC are near that price, I really can't blame the guy for not paying. I can see a grand or two a year, but 6K for just one? How much of that goes to songwriters, 5 bucks? Insane.

 

Don't you know that the musicians only purpose is to sell exorbitantly priced bits of plastic? 5 bucks - shouldn't they be giving half of that to the lawyer trolls?

[keyman27]

Copyright and patents are a nice idea but the way it's implemented is stifling business and innovation, instead of getting the IP holders any dough. Here is a great story on this topic: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack

[Cygnus64]

Don't you know that the musicians only purpose is to sell exorbitantly priced bits of plastic?

Oh. I thought our sole purpose was to score chicks. Strange.

[frogmonkey]

I know I'm not the only one on this forum who has ASCAP or BMI-registered music, who gets radio play, and who never sees a penny from it.

[iLaw]

From the article:

BMI says its current licensing fee is $6,060 per year.

 

Wow, that's high. If ASCAP and SESAC are near that price, I really can't blame the guy for not paying. I can see a grand or two a year, but 6K for just one? How much of that goes to songwriters, 5 bucks? Insane.

 

BMI's Eating and Drinking Establishment license uses a fee calculation that considers various factors, including: live versus recorded music, multiple singers/instrumentalists versus single singer/instrumentalist, admission or cover charge, and dancing, to determine a "total rate per year per occupant," which you then multiply by the premise occupancy (usually per building or fire code). There's also a jukebox fee if there is a jukebox that is not already licensed by the jukebox vendor.

 

Anyway, the minimum annual fee is currently $331. Maximum annual fee is $9,892.

 

Larry.

 

[Cygnus64]

From the article:

BMI says its current licensing fee is $6,060 per year.

 

Wow, that's high. If ASCAP and SESAC are near that price, I really can't blame the guy for not paying. I can see a grand or two a year, but 6K for just one? How much of that goes to songwriters, 5 bucks? Insane.

 

BMI's Eating and Drinking Establishment license uses a fee calculation that considers various factors, including: live versus recorded music, multiple singers/instrumentalists versus single singer/instrumentalist, admission or cover charge, and dancing, to determine a "total rate per year per occupant," which you then multiply by the premise occupancy (usually per building or fire code). There's also a jukebox fee if there is a jukebox that is not already licensed by the jukebox vendor.

 

Anyway, the minimum annual fee is currently $331. Maximum annual fee is $9,892.

 

Larry.

 

Aaaah, that's more like it, thanks. Must have been a pretty big place I take it.

[JeffLearman]

Thanks for the clarification Larry. The article is grossly misleading on that point.

 

The comments on the article expose the usual gamut of idiots and ingoramuses, with a few posts by folks who seem to know what they're talking about. A lot of them think the PROs are just "big business as usual" and don't realize that they're one of the few things making life possible for songwriters to actually get paid (unlike the recording industry as a whole, which cries about the poor artists' rights when pushing DMCA while cheating them blind on royalties.

 

But it is understandable that people have a "cry foul" reaction to "you must pay us to play popular songs". Once something becomes so popular it's part of the culture, it's easy to foprget that someone's livelihood depends on it. Elton John can always charge for performances, but what are Bernie Taupin's alternatives?

 

Sure, we've all seen stories of abuse on the part of a PRO, like the time one of them went after a girl's camp (or was that the RIAA?), or charging a coffee house that has a small sing-along area used occasionally as though the music is for the full venue every night of the week. But I believe in general those are exceptions, not the rule.

 

[iLaw]

By my calculation, a coffeehouse wanting live music (multiple singers/instrumentalists, gotta have room for Pomplamoose!) 2-4 nights per week, no recorded music, no admission/cover/drink minimum, no dancing and a 60 person premise occupancy would pay BMI the minimum. $331 per year.

 

Add a radio to the calculation for the rest of the time and the fee goes to only $342 per year; just over the minimum.

 

Add an admission/cover/drink minimum and we're up to $444 per year.

 

Bear in mind that this is only for BMI.

 

Larry.

 

[Bridog6996]

That's interesting, because I just recently had a little "situation" with a venue and SESAC, which is my PRO. They had contacted the venue about a month before my band was supposed to play there requesting they purchase a license. The venue pays a yearly blanket license for ASCAP, and they didn't seem to realize that doesn't cover all music, just ASCAP artists. They also mistakenly thought it had something directly to do with my band, like that we initiated the whole thing (we didn't) and that it was just a matter of us telling SESAC to call the whole thing off. The whole thing ended up being resolved amicably, but I facepalmed when I found out SESAC didn't want them to buy a blanket license, just a temporary license to cover our gig for $20. We ended up selling the place out, and the venue owners were balking at paying a measly $20?

 

The moral of this story is that, yes, maybe PROs can be seemingly harsh sometimes, but venue owners can also be cheapskates. But we all know that, right?

[Jason Stanfield]

Paying this license is not up to each band, correct?

 

Is it possible that bandmembers could be fined?

I'm no lawyer, nor do I have an intimate understanding of copyright and license laws ... but it's my understanding is that it's the venue's responsibility to pay those fees, since bands are hired by those venues to perform; the bands themselves can claim protection under Fair Use, but it's a fairly murky issue.

 

According to Patents & TMs' website:

 

The court in New Kids on the Block v. News America Publishing Inc. articulated a three-part test for nominative fair use:

 

First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

 

... so I guess that, unless you claim to be Van Halen, assume all their trademarks, or imply/claim endorsement by Van Halen, you can perform "Jump" without any retaliation from ASCAP et al.

[Joe Muscara]

Have any of you guys ever encountered (not necessarily played at) venues that wanted bands to play all original music because "of the hassle they were getting from the PROs"?

 

[kanker.]

Have any of you guys ever encountered (not necessarily played at) venues that wanted bands to play all original music because "of the hassle they were getting from the PROs"?

 

There's a venue in Indy, run by a musician that was in an internationally successful punk band, who does the all original thing, partly on principal I think, and partly to avoid the fees.

 

There was another club here in Indy that put a temporary moratorium on the performance of Bob Dylan songs until he could come to an agreement with SESAC. Needless to say, I was sad to hear they did come to an agreement.....

[Jeff Klopmeyer]

I know I'm not the only one on this forum who has ASCAP or BMI-registered music, who gets radio play, and who never sees a penny from it.

 

Hello.

[kanker.]

I know I'm not the only one on this forum who has ASCAP or BMI-registered music, who gets radio play, and who never sees a penny from it.

 

Hello.

I get the occasional direct deposit from BMI. I usually go out and celebrate by blowing all the money on a sandwich.

[DanS]

There was another club here in Indy that put a temporary moratorium on the performance of Bob Dylan songs until he could come to an agreement with SESAC. Needless to say, I was sad to hear they did come to an agreement.....

 

[Bridog6996]

Have any of you guys ever encountered (not necessarily played at) venues that wanted bands to play all original music because "of the hassle they were getting from the PROs"?

 

 

In the situation from my previous post, SESAC (our PRO) was demanding a license fee from a venue we were playing at, and my band does play all original music. The only way for a club to not get hassled is to specifically only allow bands that aren't associated with any PRO.

 

[kanker.]

Have any of you guys ever encountered (not necessarily played at) venues that wanted bands to play all original music because "of the hassle they were getting from the PROs"?

 

 

In the situation from my previous post, SESAC (our PRO) was demanding a license fee from a venue we were playing at, and my band does play all original music. The only way for a club to not get hassled is to specifically only allow bands that aren't associated with any PRO.

And now for the big question - did SESAC send you the $20?

[Bridog6996]

I know I'm not the only one on this forum who has ASCAP or BMI-registered music, who gets radio play, and who never sees a penny from it.

 

Radio play pays very little to begin with, and on top of that, only commercial radio is accounted for. Public radio doesn't count. Since public radio is generally the only platform for artists not on major labels, I'm assuming that's the situation here, but correct me if I'm wrong. I'm rather ambiguous toward PROs, so this isn't a defense really, just saying that realistically you probably shouldn't be expecting royalties.

 

 

 

[Bridog6996]

Have any of you guys ever encountered (not necessarily played at) venues that wanted bands to play all original music because "of the hassle they were getting from the PROs"?

 

 

In the situation from my previous post, SESAC (our PRO) was demanding a license fee from a venue we were playing at, and my band does play all original music. The only way for a club to not get hassled is to specifically only allow bands that aren't associated with any PRO.

And now for the big question - did SESAC send you the $20?

 

Ha. No, not directly, but I guess I'll find out when I get my next quarter statement. They've been pretty good about paying out live performance royalties in the past though, so my guess is actually...yeah, I'll probably be seeing at least some of that.

[The Real MC]

If I were confronted with that, I'd challenge them to prove they are the owner of the alleged copyright(s) before I pay a dime.

 

I'm getting a little tired of these "fronts" acting on the behalf of IP owners, and courts have set a precedent dismissing IP cases brought by entities that are not the true owners. They only reason the labels use these "fronts" is to shield themselves from negative publicity.