ASCAP sues restaurants over music use… are theatres next?

In recent months, the American Society of Composers, Authors and Publishers (ASCAP) has sued at least twenty six restaurants around the country for copyright infringement. The claims stem from the restaurants' playing of music without obtaining a license from the performing rights organization. Before long, theatres and other performance venues may also be targets.

ASCAP and its competitor BMI (Broadcast Music International) are the two largest American performing rights societies, charged with collecting royalties for songwrites and publishers for “public performances” of songs in their respective catalogs. ASCAP's catalog boasts over 8 Million Songs. a public performance occurs whenever a song is played on the radio, television, or the internet, and most performances (live or recorded) of music in public spaces, such as restaurants, nightclubs and theatres

[Note: Theatres routinely pay play publishers for the right to perform plays and musicals on their stages, but the licenses granted typically cover only those works which are an integral part of the play in question. (so-called “grand performance rights“). If, however, the venue uses additional music pre- or post-show, or fills scene changes and intermissions with songs not written specifically for the play, a so-called “small rights” public-performance license will also be required.]

Both ASCAP and BMI employ investigators to roam the country identifying new restaurants, bars, theme parks or other establishments where music is used. Venue owners are required to purchase a license, typically for a single annual fee based on the size, seating capacity and type of venue.

While many businesses aren't aware of these rules, entertainment attorneys say that suits to enforce these licensing requirements are increasingly common, and ASCAP's senior vice-president Vincent Candilora is quoted in the Seattle Times as saying that the recent lawsuits are intended to spread the word that performing such music without permission is a federal offense.

Although the societies have targetted bars, restaurants and nightclubs, any business can be the target of enforcement actions. Theatres, cabarets and other performance venues are especially succeptible to lawsuits of this type. Nowadays, even shopkeepers play music in their establishments to entertain customers and set a mood. If unlicensed, doing so can result in a costly lawsuit.

New and established business owners should consider carefully how music is used on their premises and obtain the necessary licenses.

14 Responses to ASCAP sues restaurants over music use… are theatres next?

  1. I have a restaurant that has live music two night a week. This is a couple of guys that just come and play music. There is no cover charge, No alcohol, and no dance floor. If i need a license for this it would cost me thousands of dollars. I receive no monitary value from this. I would have to have licenses from all three ASCAP, BMI and SESAC. It’s getting pretty bad when people can’t set around and play live music.

    • It’s getting pretty bad when people build their businesses on the creative work of others, and aren’t willing to pay for the right to use that work. Music isn’t free. Deal with it.

  2. If we have a 2800 sq ft restaurant and play televisions that are always muted, using closed captioning, are we required to be licensed with ASCAP?

  3. We have a wedding venue and have received a demand letter from SESAC. I have explained the ALL the music played here is a.) contracted by the people that rent our facility, b.)played by DJs that are required to have a music license and c.) played on the DJ’s equipment, d.) the music is for the enjoyment of friends and family of the DJ contractors.
    I do not think the law requires us to obtain a license. What do you think? If you agree with me, should I fight it?

  4. Although the original reason behind ASCAP, BMI and SESAC’s existence is legitimate, the definition of “public performance” has become overreaching. Earning royalties from music by virture of its recordings being “performed” for free over a department store’s PA system or on-hold is like saying the artist who created the statue that is mounted in a park should receive ongoing royalties. After all that artist’s work is also being publicly “consumed” by passers by, right? I didn’t think so.

    Royalties should only be paid when admission is charged for a public performance of music or when an establishment’s income is primarily dependent of the presence of music.

    • Thanks, Kevin for your comment. You present a valid point of view, but it’s one I can’t agree with. It seems to me that a business that uses music to help create a favorable and marketable ‘atmosphere’ for its customers, should pay for that music, just as it pays for the elecricity, heat, water, etc. and supplies that contribute to the business’ operations. After all, nobody’s FORCING the business to use music. It’s a choice. (It’s the business using the music that ‘consumes’ it, not the customers who visit the business)

      It’s NOT the same as public art… in most cases the sculptor was ‘commissioned’ to create the work, and in many cases, DOES get paid a royalty if that art is reproduced. Songwriters write their songs (usually) on ‘spec’, and only get paid when their songs are performed. It’s a misconception that songwriters make big bucks from simply having their songs recorded.

      • Thanks for your response. Grocery stores could not operate without electricity, heat and water. They could, however, operate without background music, so there is a fundamental difference. Other forms of art, such as paintings hung on the wall, are also used to enhance a business’s atmosphere, yet the business only has to pay for those paintings once. There is no ongoing usage fee (unless of course the paintings were rented).

        If pay ASCAP a licensing fee in order to have the right to personally choose the background music at my shop, ASCAP will not survey those selections and will therefore have no way of knowing who is actually entitled to those royalties. The royalties will be paid according to radio station surveys. Playing Montovani to pay Elton John hardly seems fair to me.

        • Kevin,

          You’re right, grocery stores COULD operate without background music… So, if they don’t want to pay for the music, they should do just that! However, if the store wants to use music to set the ambience, then it should pay for the privilege.

          It’s theoretically possible to do this on a pay-once, use it as much as you like basis.. but that up-front payment would be MUCH higher than the .99 per song you pay when you download from iTunes for PERSONAL use. Remember, the public performance is a different animal. Would you pay 5 or 6 figures for each song you want to play in your business, if you could play it an unlimited number of times?

          You’ve correctly identified an issue that comes up with the question of whom ASCAP pays, but that’s really an issue between that organization and the songwriters. The fact is, they’ve got a very complex formula and algorithm that allocates revenues in accordance with statistical data about which songs are played most, etc. The point is, the songwriters have contracted with ASCAP, or BMI, or SESAC to administer their exclusive performance rights.

          • Again, thanks for your reponse. You are right in saying ASCAP’s method of calculating payments is between them and the songwriters. I still maintain, however, that in situations like the example I gave, where your personally selected music is not surveyed, an exemption to the licensing agreement should be available. How much trouble can it be for ASCAP to ask a business to provide copies of the CD liners for example? Even if the business owner falsely sends them copies of royalty free CD liners, it at least shows an effort on the part of ASCAP.

          • I’d think that a business being threatened by ASCAP would be proactive in providing proof that the music they use is royalty-free. No need for ASCAP to do anything.

          • ASCAP and BMI do not census nor survey uses wherein the cost of said census or survey would cost a great percentage or more than the income derived from that user base. It is therefore in the best interest of the songwriters to agree to have that money go into the general fund and be distributed on the basis of other censuses and surveys.

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