Several recent headline-grabbing copyright infringement lawsuits against small eating and drinking establishments have forced restaurant operators to think twice before hitting play on their iPods, cueing up the jukebox, or even turning on the radio.
In early December, publishing rights organization Broadcast Music Inc. (BMI) sued Mallonn’s Grill & Bar in Canton, Ohio, for allegedly playing music by Kid Rock, Dave Grohl, and other licensed artists without paying royalties. (Mallonn’s declined to comment for this story.)
In November, BMI filed a copyright infringement lawsuit against a Lewiston, Idaho, sports bar that was allegedly playing music by Taylor Swift and other BMI-affiliated artists.
The celebrities involved drew attention to both cases even though BMI—not the artists themselves—initiated the lawsuits.
Still, such cases are not uncommon. BMI files between 75 and 125 copyright infringement lawsuits against eating and drinking establishments every year, according to spokesman Jerry Bailey. The American Society of Composers, Authors and Publishers (ASCAP), another large publishing rights organization, files between 250 and 300 per year, according to Vincent Candilora, ASCAP’s senior vice president for licensing.
Both BMI and ASCAP, which each license millions of songs, say they take legal action as a last resort. Rather, they will repeatedly contact businesses to ask them to pay for the music they are playing before going to court. Copyright protection extends to most publicly performed music, whether it is coming from the radio, an MP3 player, or a karaoke singer.
“The overwhelming majority of restaurants that utilize copyrighted music are licensed,” Candilora says. “What you see from time to time are establishments that think they are too small, or because they’re in non-metro areas they think we’re not going to pursue them. And most of the time they’re wrong.”
Copyright infringement lawsuits can be costly, with penalties ranging from $750 to $30,000 per song, whereas the average cost of a subscription with BMI, for example, is about $650 for restaurants, Bailey says.
But while most restaurants cough up the money and get their music through the big publishing rights organizations, there is an alternative. These days, many little-known musicians looking to make a name for themselves are offering their songs for commercial use free of charge. There are hundreds of thousands of such songs, according to Eric Steuer, creative director at Creative Commons, a nonprofit corporation “dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright,” according to its Web site.
In September, music distributor Jamendo PRO partnered with the International Hotel & Restaurant Association to make its collection of Creative Commons–licensed music available to IH&RA members. At $144 per year, the service is cheaper than a BMI or ASCAP subscription but does not offer big-name artists.
“The vast majority of our music content [is] not really any artists that people have heard of or famous bands,” says Dan Aufhauser of Jamendo. “But we pride ourselves on supporting the independent, emerging-artists community.”
Nationwide, Jamendo serves about 30 restaurants, generally small, no-frills establishments, Aufhauser says.
“The [restaurants] that are coming to us are the ones that need to have music, want to have music, and are also trying to be cost effective in their decision,” Aufhauser says. “It’s not the largest, most-famous, stylish restaurants because those restaurants know they need to have famous artists. They need Frank Sinatra.”
For the majority of restaurants relying on licensed music, the recent round of copyright infringement cases serves as a warning.
“A restaurant owner needs to be aware that, regardless where you got the music, you probably need to a license to play it in your restaurant,” BMI’s Bailey says.
“It’s just like every other piece of property,” ASCAP’s Candilora says. “And the songwriter wants you to use their property—they just want you to pay for it.”