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Be careful of copyrighted tunes

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In 2006, Randolph White, a restaurant owner in Virginia, received a notice from the American Society of Composers, Authors, and Publishers — better known as ASCAP — warning him that the music he played in his restaurant was protected by copyright and that he needed to obtain a license from ASCAP to play it.

White ignored the warning, thinking ASCAP would simply go away. Instead, ASCAP hired an investigator who spied on White’s restaurant and recognized three songs played in the restaurant without ASCAP’s permission. ASCAP filed a copyright infringement suit against White and was awarded a judgment of almost $14,000 in damages and fees.

Local business owners who play music in their establishments have likely received similar notices from ASCAP or other entities, such as BMI and SEASAC, demanding that they pay a license fee (usually called a “blanket license fee”) for permission to play copyrighted music. Like White, many local owners ignore these demands, to their potential peril.

ASCAP, BMI, and SEASAC are entities that monitor performances and broadcasts of their members’ original music. Without delving too deeply into the murky world of copyright law, any “public performance” of a copyrighted work requires an appropriate license. ASCAP, et al. ensure that businesses playing copyrighted music obtain licenses to do so. A business that refuses to obtain a license to play copyrighted music is potentially liable for copyright infringement.

Under Copyright Law, almost every business that plays copyrighted music must obtain a license to do so. This includes department stores, restaurants, supermarkets, even yoga studios.

ASCAP is not required to provide a list of its copyrighted works or artists. The burden rests on the potential licensee to demonstrate that it does not play copyrighted music. ASCAP provides a searchable website database where businesses can check if a particular song is subject to an ASCAP license, but that database is updated weekly, making it practically impossible to monitor.

The price of a license is determined by an elaborate formula involving the size of the establishment, form of the music (radio, recording, live performance, etc.), type of mechanism broadcasting the music, and even radio and TV demographics and concert ticket prices. Usually, the license fee rests conveniently (for ASCAP) between ‘big enough to sting’ and ‘too small to talk to an attorney.’

Defeating ASCAP in court is almost impossible. For more than 100 years, courts have struck down challenges to ASCAP from businesses, nonprofits, schools, private clubs and other entities, arguing that the music they play is either non-public or non-performing. Television and radio stations have fared no better. The result is an unregulated, near-monopolistic system of copyright enforcement. For example, a song broadcast in a local business over the radio is subject to three licenses—one from the original record company, one from the radio station, and one from the local business.

Several exemptions from the licensing requirement exist, but courts are split nationally as to their enforcement and interpretation. Some courts hold that businesses occupying fewer than 620 square feet are exempt. Others reject that notion and hold that businesses using broadcast equipment “commonly used in private homes” warrant an exemption. But those same courts disagree on what types of stereos are commonly used in private homes.

The moral to Mr. White’s story is: DO NOT ignore notices from ASCAP, BMI, or SEASAC. The music police will not ignore you. Once they have you on their radar, they will not simply go away.

H. Lee Lewis is an attorney practicing at Jeffers, Danielson, Sonn & Aylward, P.S. He advises businesses and individuals in a range of civil matters, particularly involving litigation.

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