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Dennis Sichner traveled 400 miles to hang out at a Washington, D.C., bar on a Sunday night. There were $3 beers, 40 to 60 men and women, and a local bluesman playing three sets that evening. None of that mattered to Sichner. After waiting nearly four hours — and with just 10 minutes until closing time — the saxophonist from Cleveland got what he came for when three Stevie Wonder songs played over the house sound system. Sichner was a spy for a coalition of music publishers looking to make a copyright infringement case against Madam’s Organ, a popular bar in Northwest Washington. And Wonder’s songs apparently did the trick. On Aug. 12, a D.C. federal judge ordered Madam’s Organ to pay $15,000 in damages to two publishing companies for the violations, as well as $2,500 in court costs. U.S. District Judge Colleen Kollar-Kotelly also permanently banned the bar from playing songs owned by members of the American Society of Composers, Authors, and Publishers (ASCAP), a publishing association that represents thousands of artists and copyright holders. The judge is also considering whether Madam’s Organ’s owners should pay $63,000 in plaintiff attorney fees. Not surprisingly, folks at Madam’s Organ aren’t happy. “This was a shakedown,” says manager William Duggan, adding that the bar may be forced to close if ordered to pay legal fees. “Their intention is to make a hardball example out of us and scare the shit out of everyone else.” Duggan says he plans to appeal the judgment. OLD-SCHOOL TACTICS In an age where millions of copyrighted songs are downloaded and shared via the Internet, the Madam’s Organ case serves as an example of how publishing companies are still using old-school tactics — such as sending spies into bars and restaurants — to catch scofflaws. The strategy appears to be highly successful, netting thousands of dollars for publishers, while forcing defendants to pay legal fees. “We can’t go to the FBI and say, ‘Please arrest this person for violating the law,’ ” says Richard Reimer, senior vice president of legal services for ASCAP. “ But we can, on behalf of the owners, enforce their rights and can get significant monetary damages.” ASCAP’s outside counsel Benjamin Zelenko, of D.C.’s Baach Robinson & Lewis, helped to represent the association in the case against Madam’s Organ. Zelenko referred calls to ASCAP. The case also exposes the vulnerability of establishments that play music to a paying — or dancing — audience. Duggan of Madam’s Organ argued in court papers that there were no copyright violations because the bar subscribes to Music Choice, a cable music service provider. Judge Kollar-Kotelly ruled, however, that copyright protections offered through Music Choice did not extend to places that charge an admission fee or allow dancing. The judge found that Madam’s Organ had done both. Greenbelt, Md., lawyer Richard Basile, who represents Madam’s Organ, says there are so many different parties owning various copyrights to songs and programs broadcast through computers, satellite television, and cable that it has become increasingly difficult for business owners to ensure they are complying with the law. “There isn’t an exclusive license for anything,” Basile says. “This is becoming more of a problem than the old days when you had jukeboxes and bands.” Most songwriters and copyright owners in the United States are represented by publishing companies who partner up with associations to issue licenses and collect fees for the use of their songs. ASCAP and Broadcast Music Inc. are two of the largest, representing an enormous catalog of music. Under federal law, any public performance of a copyrighted work must be licensed, and the artist is entitled to collect a royalty fee for its use. WARNED AND WARNED AGAIN According to the complaint, Madam’s Organ has known since 1998 that it was violating the law. That year, ASCAP representatives began writing, calling, and visiting the bar in an attempt to get the owners to pay an annual licensing fee in order to play music by such artists as Dave Matthews, Elvis Costello, the Rolling Stones, and Led Zeppelin. The communications warned the bar that a live band covering an ASCAP artist’s song constitutes a copyright violation. In a July 2001 letter addressed to Duggan, an ASCAP official wrote that if Madam’s Organ did not send payment for a license within 15 days, the matter would be turned over to the association’s lawyers. An invoice was included with the letter stating that Madam’s Organ owed more than $3,000 for licensing fees going back to 1998. According to ASCAP documents, how much an establishment must pay for a license depends upon several factors, including the establishment’s capacity, how many days it is open, and whether live music is performed. By 2001, ASCAP had determined that Madam’s Organ — known for having live acts seven nights a week — should pay $1,100 annually. According to court papers, Madam’s Organ grossed more than $900,000 that year. ASCAP’s Reimer says his group tries to license establishments it believes are violating the law and turns to spies and the courts if businesses refuse to pay. And the publishing companies have a pretty good track record in the courts. Reimer says in the 30 years that he has worked for ASCAP, the organization has filed hundreds of actions and lost about two. Federal judges also routinely allow plaintiffs to recover their legal costs. Tom Schoenberg ([email protected]) is a senior reporter with Legal Times .

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