Comments on: ASCAP sues restaurants over music use… are theatres next?

By: Gordon Firemark

Gordon Firemark — Sun, 22 Jan 2012 00:17:02 +0000

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.

By: Jim Minga

Jim Minga — Thu, 19 Jan 2012 00:30:45 +0000

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.

By: Jen

Jen — Fri, 02 Dec 2011 00:07:24 +0000

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?

By: Rex Grey

Rex Grey — Fri, 08 Jul 2011 20:11:36 +0000

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?

By: Gordon Firemark

Gordon Firemark — Sat, 20 Nov 2010 01:13:26 +0000

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.

By: Kevin

Kevin — Sat, 20 Nov 2010 00:26:33 +0000

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.

By: Gordon Firemark

Gordon Firemark — Fri, 19 Nov 2010 18:00:42 +0000

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.

By: Kevin

Kevin — Fri, 19 Nov 2010 05:33:31 +0000

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.

By: Gordon Firemark

Gordon Firemark — Wed, 17 Nov 2010 07:01:36 +0000

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.

By: Kevin

Kevin — Wed, 17 Nov 2010 06:54:36 +0000

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.