Plan B Burger ()
Pop superstars such as Rihanna, Taylor Swift and Lady Gaga don’t make many live appearances in Connecticut. But their music is frequently played in bars, restaurants and other businesses.
Legally, the playing of that music—on the radio, or via a compact disc or MP3 players—in a commercial establishment is considered a “public performance.” Technically, the bar or restaurant must pay a licensing organization.
Many don’t. And that can lead to copyright infringement claims that sometimes evolve into full-fledged lawsuits.
Greater Hartford’s Plan B Burger Bar chain, Cheshire’s Waverly Inn and Willimantic’s Lucky Frog are current targets of music copyright infringement suits, federal court records show.
In the previous two years, at least eight eateries in West Hartford, Branford, Guilford, Ansonia, Redding, Shelton, Norwalk and Weston have either settled lawsuits or lost court battles, according to court records. Though most settlements are confidential, the Shelton restaurant paid $18,000.
“There are literally countless public performances every day,” said Richard Reimer, the senior vice president of legal services for the American Society of Composers, Authors and Publishers (ASCAP), one of the major organizations that protects members’ music copyrights. “You hear music performed at retail stores, stadiums, on radio shows and at restaurants.”
Hotels, nightclubs, fitness clubs and hospitals that play music for patrons and patients are other places that need to buy licenses, which can run from several hundred to many thousands of dollars a year, depending on the size of the business and the potential audience. A spokeswoman for Broadcast Music Inc., another major licensing organization, said that “any performance of music ‘outside a normal circle of family and friends’ is considered a public performance that requires authorization.”
Most restaurant owners prefer not to discuss their lawsuits. But Connecticut Restaurant Association Executive Director Nicole Griffin said her organization tries to explain to its members that they need a license to play recorded music or to hire a live band that covers other artists’ compositions.
When Connecticut restaurants get phone calls from the licensing organizations, the owners sometimes call Griffin’s organization to ask if the request to pay up is legitimate. “We explain to them, ‘Yes, it’s legit.’ The folks that write the music need to get paid.”
Members of the restaurant association are offered 20 percent discounts on licenses. “Often BMI will contact us and help us to encourage people to get a license so they aren’t sued,” Griffin said.
Regina von Gootkin, an intellectual property lawyer with Brown, Paindiris & Scott, acknowledged that many restaurant owners aren’t thinking about music copyright issues when they open a restaurant. Others simply don’t want to pay the licensing fee, said von Gootkin. “A lot do know about [the licensing rules], and they are willing to take the risk,” she said.
Most music is clearly protected under the law, said von Gootkin, who has represented musicians with copyright issues, though none involving restaurants. “If I’m Brittney Spears and I go into a restaurant and they are playing my song, I want to get paid for it,” she said. “If you’re a business where you are playing music, you have to make sure you are paying the [artist].”
Von Gootkin said licensing companies send scouts out to see if commercial establishments are playing a member’s music. If they are, and they don’t have a license, the licensing association sends out a letter to the restaurant. “They give you the opportunity to buy a license,” she said.
BMI, which represents more than 600,000 songwriters, composers and music publishers, appears to have filed more lawsuits against Connecticut businesses than other licensing companies. It’s the plaintiff in the lawsuits against the restaurants in Greater Hartford, Cheshire and Willimantic. But a BMI official said the company sees litigation as a last resort.
“BMI seeks to collaborate with business owners and educate them as to the value of a music license, how to obtain one, why it is necessary, and the potential cost associated with copyright infringement,” said Leah Lupo, BMI’s director of public relations. “We make extensive efforts, and even after we have identified that musical works are being performed and infringed upon, BMI attempts once again to offer to resolve the matter by offering a license before moving to legal action.”
According to BMI, for every licensing dollar collected, about 85 cents is distributed as royalties to songwriters, composers and music publishers.
ASCAP’s Reimer said his organization also prefers education to litigation. “We don’t just file lawsuits,” he said. “We undertake an extensive effort to contact people to advise them of copyright law. We would rather have them obtain a license than file a lawsuit.”
Even after all these years, Reimer acknowledged, some restaurant owners still have trouble with the concept that it’s fine for them to buy a CD and listen to it at home, but it’s not OK for them to play the same CD while customers dine, unless they pay the licensing fee.
“We understand this is not the easiest point to get across to people who own a restaurant,” Reimer said. “It’s unfortunate that decade after decade these lawsuits have to be filed.”•