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Businesses Music The Almighty Buck The Courts Your Rights Online

Restaurateur Loses Copyright Suit To BMI 389

Frosty P writes: BMI claims Amici III in Linden, New York didn't have a license when it played four tunes in its eatery one night last year, including the beloved "Bennie and the Jets" and "Brown Sugar," winning $24,000 earlier this year, and over $8,200 in attorney's fees. Giovanni Lavorato, who has been in business for 25 years, says the disc DJ brought into the eatery paid a fee to play tunes. "It's ridiculous for me to pay somebody also," he said. "This is not a nightclub. This is not a disco joint . . . How many times do they want to get paid for the stupid music?"
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Restaurateur Loses Copyright Suit To BMI

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  • Surprise! (Score:5, Insightful)

    by tnk1 ( 899206 ) on Monday June 15, 2015 @04:49PM (#49916567)

    How many times do they want to get paid for the stupid music?"

    As many times as they possibly can.

    Obviously.

    • A few.. (Score:5, Insightful)

      by JBMcB ( 73720 ) on Monday June 15, 2015 @09:39PM (#49918391)

      One license for transferring music data off a storage medium. One license for converting digital music data to an analog form. One license for each speaker reproducing the sound, including woofers and tweeters. One license per 10m^3 of space where the mean audio is within two deviations of the average loudness of the music.

      If you are listening to said music, you need a license for that, and another if you are planning on remembering listening to the music, plus a re-performance license if you are going to hum a substantial portion of the primary melody in the shower later.

  • How many times? (Score:5, Insightful)

    by NoKaOi ( 1415755 ) on Monday June 15, 2015 @04:51PM (#49916577)

    How many times do they want to get paid for the stupid music?

    Infinite.

    • by Lead Butthead ( 321013 ) on Monday June 15, 2015 @05:02PM (#49916701) Journal

      For the record labels, every passing thought of the melody or lyric constitutes an infringement. The only thing that's stopping them right now is their inability to read minds.

    • Re:How many times? (Score:5, Interesting)

      by Lawrence_Bird ( 67278 ) on Monday June 15, 2015 @05:02PM (#49916703) Homepage

      If I buy a CD and play it in my home, how many others may be in the same room listening before I need to pay a fee?
      If a company buys a CD and plays it at their place of business, who else may be in the room listening before they need to pay a fee?

      I do not know the answer buy my personal opinion is "as many as I want" unless as a business the main reason why customers are paying me is to listen to those specific songs, in that case I am re-marketing them.

      • Re:How many times? (Score:5, Insightful)

        by Anonymous Coward on Monday June 15, 2015 @05:16PM (#49916819)

        Open your windows and play it as loud as you can.

        What you do in your own home is private consumption.

        Really need to start tacking RICO act violations to the RIAA ASCAAP, BMI, etc...

        They are just thieves out to steal as much money as they can without benefiting anyone but themselves.

      • Re:How many times? (Score:5, Insightful)

        by geekmux ( 1040042 ) on Monday June 15, 2015 @05:22PM (#49916877)

        If I buy a CD and play it in my home, how many others may be in the same room listening before I need to pay a fee? If a company buys a CD and plays it at their place of business, who else may be in the room listening before they need to pay a fee?

        I do not know the answer buy my personal opinion is "as many as I want" unless as a business the main reason why customers are paying me is to listen to those specific songs, in that case I am re-marketing them.

        In the case of a business, you're playing music for the same reason the artist is making it; to entertain others.

        Don't want to pay for that entertainment? Fine, let your customers do whatever they want to do in your store in silence.

        And it doesn't matter if our personal opinions match here. All that matters is the "logic" a lawyer needs.

        • by aitikin ( 909209 )
          That's why you get your kitchen staff to wear earplugs and play the music loudly from there. At that point, it's for the staff's enjoyment, and not as an entertainment draw for the restaurant/bar (legally speaking). I don't necessarily agree with the way this one works, but I do see benefits to the fact that the musician is actually make some semblance of money off of these deals, unlike the record labels.
        • by AK Marc ( 707885 )
          So, if an employee brings in a radio and plays it alone in the break room, the owner should end up sued for copyright violation.

          If not, then you agree there are times when music in a business isn't subject to extra licensing.
          • by aitikin ( 909209 )
            That's an area devoted to the sales staff and therefore you are not playing music for customers. There are exceptions made for that (see my other post).
            • by AK Marc ( 707885 )
              If the break room can be heard by the customers, at what dB level do they owe increased royalties?
          • by Lumpy ( 12016 )

            Yes, they should be sued for $22 million or more. That is the stance of ASCAP/BMI and the record labels.

        • In the case of a business, you're playing music for the same reason the artist is making it; to entertain others.

          Same reason you play it in your own home when others are also present.

          That's why a music CD costs a lot more than a blank CD, correct?

          • In the case of a business, you're playing music for the same reason the artist is making it; to entertain others.

            Same reason you play it in your own home when others are also present.

            That's why a music CD costs a lot more than a blank CD, correct?

            The price of CDs were established when they first went public based on the cost of manufacturing. Now the cost of manufacturing is 5 cents and they still charge the same amount because they know that's the price the market will bear.

        • Re:How many times? (Score:5, Insightful)

          by cptdondo ( 59460 ) on Tuesday June 16, 2015 @11:14AM (#49921569) Journal

          Did you ever try to get a license for a "performance" like this? I did, once, just to see how difficult it is.

          Turns out that, at the time, neither BMI nor ASCAP had a way to legally play their music unless you were a professional DJ, were pressing at least 200 CDs, or were re-mixing their music.

          After 6 weeks of phone calls and emails, and getting shuttled off to various other agencies, it turned out that they had no license that would allow an individual or a business to play songs from their catalog for a single event.

          Of course that does not prevent them from suing for lack of the same.

      • Answer is here [ascap.com]. Essentially if you have a gathering that is not family and friends, you'll probably have to pay. If it's just your family and friends, then you're good (but if you're a bartender, good luck trying to get the judge to believe that all your clients are friends).

      • There are stark differences between what a private individual can do for family and friends, and what a business owner can do when serving clientele from the general public. For example, it is not illegal to be a raging racist in one's personal life, but bringing that to your business relationships may have negative legal ramifications -- that is how it is.

        Now, it is true that the difference be a private activity and a licensed public business is not 100% clear. But that is not the issue in this case here

  • Good (Score:3, Insightful)

    by ebcdic ( 39948 ) on Monday June 15, 2015 @04:52PM (#49916589)

    When I go to a restaurant I want food, not music.

  • by TheDarkener ( 198348 ) on Monday June 15, 2015 @04:57PM (#49916647) Homepage

    Artists need to hop on the CC bandwagon. Things have changed drastically since the music industry started strangling them as well as consumers.

    If we had a sizable pool of popular CC licensed music, this kind of thing would be less of an issue because establishments like this could simply use it instead. There are tons of new ways for artists to get paid via CC licensed music. Maybe we can brainstorm on ideas and models for this to become a reality? I'm thinking some sort of croudfunding model might be a good first step.

    • by jonwil ( 467024 )

      Except that even if you use only music where you have explicit permission from the copyright holder (Creative Commons or otherwise) the rights enforcement goons will still come after you and sue you (and since they are much bigger and more powerful they will probably win or at least make it too expensive to fight rather than settling)

      • I would expect a massive crowdfunding campaign would cover any legal costs if the "rights enforcement goons" tried to sue someone for using CC BY redistributable music. The first case would (if it hasn't already been done anyway) form a stare decisis [thefreedictionary.com].

        I would assume other (i.e. non-CC but cleared by copyright holder) music would be more difficult since there is not as much legal evidence to go off of as CC licensed music but definitely the public would be behind them as long as there is enough evidence to pr

  • by Noah Haders ( 3621429 ) on Monday June 15, 2015 @05:00PM (#49916693)

    I was just reading about Jurassic world, so when I looked at the headline I thought it said Restautantosaur. How cool would that be?

  • by JonZittrain ( 628028 ) on Monday June 15, 2015 @05:14PM (#49916807) Homepage
    The court didn't actually weigh the case, since the restaurant never answered [justia.com] the complaint. That's too bad, as most restaurants *don't* owe fees thanks to the Fairness in Music Licensing Act [harvard.edu], the result of the NRA (National Restaurant Association) beating the music licensig lobby. It says that you don't have to pay fees:

    (ii) in the case of a food service or drinking establishment, either the establishment in which the communication occurs has less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and--

    (I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;

    So most establishments have a defense. Maybe this one did. But the judge heard from only one side since the restaurant never showed up to court. Too bad.

    • >>> “I don’t talk to the judges. I don’t talk to anybody. I just don’t want to talk to any of these people, because it’s illegal to try and take money from people,” he insists.

      I wish there were more people like him. I hope they spend tons of money trying to get him to pay up, and fail.

    • by JustNiz ( 692889 )

      Kinda makes you wonder how could it be that the complaint was never answered yet the restaurateur was down $8200 in attorney fees. Especially if the case was so cut-and-dry that the Fairness In Music Licencing act already covered him.

    • by taustin ( 171655 )

      The court didn't actually weigh the case, since the restaurant never answered [justia.com] the complaint.

      And that's the end of any sympathy they might have had coming from me. No matter how ridiculous the lawsuit is, if you don't answer it, you deserve to lose.

      • by russotto ( 537200 ) on Monday June 15, 2015 @11:42PM (#49918961) Journal

        And that's the end of any sympathy they might have had coming from me. No matter how ridiculous the lawsuit is, if you don't answer it, you deserve to lose.

        One organization sues people to justify its existence. The other makes food. No point in the second bothering to answer in court any more than the BMI lawyers should agree to a cook-off. The outcome in either case is pre-ordained, and answering can only drive up the costs.

  • and they wonder (Score:4, Insightful)

    by gonar ( 78767 ) <sparkalicious@@@verizon...net> on Monday June 15, 2015 @05:17PM (#49916823) Homepage

    and they wonder why people feel no guilt about pirating music. the BMI/RIAA/MPAA/most record labels are corporate middleman thugs who care nothing about the content they are "licensing" but only about how many $$ they can extract out of the pipeline.

    how many of those $24k went to the 4 ARTISTS who's work was "infringed"? probably about 0.7 microcents.

    how much "damage" was actually done to those artists by the infringement? they probably actually made money as likely somebody at that restaurant that night heard the songs, was reminded of a happier time in their life and went on iTunes and bought a Rolling Stones or Elton John CD.

  • "How many times do they want to get paid for the stupid music?"

    Every time you play it.
    Every time you hear it.
    Every time you hum it.
    Every time you think it.

    Refrain: Greedy buggers bugger you every time they can!

  • It's an old blues song and BMI owes a lot of people a lot of money

  • BMI regularly sues eateries, bars and other businesses for playing music without coughing up licensing fees, which range from $357 annually for a jukebox to $5.85 per audience member for a week's worth of live performances.

    Do they mean live performances by the artist that recorded the song? If so, that's an even bigger scam than I would have guessed.

    If it's for a band that is covering the song, WTF? back when I played in various bands, you could cover anything you wanted to live. It was only an issue if it was newer than 20 years (or whatever the period of time was) and sold it on a recorded format. As far as I can recall, once it was past a certain age, anyone could make money off of recording their own version of it. You

  • I wouldn't pay a penny to listen to either of those no-talent hacks.
  • Giovanni Lavorato [...] says the disc DJ brought into the eatery paid a fee to play tunes.

    Can we have that in English? The article isn't much better...

    The disc jockey DJ brought into the eatery by his son also paid a fee to play tunes

    Brought in by whose son?

  • Rohr, who represented Bobby Dee’s

    - but sounds like he's representing BMI -

    said it makes sense for businesses to be in harmony with licensing groups like BMI. “It’s actually foolish not to do it,” he said, noting the licensing cost is less than a legal proceeding.

    Is that like how it makes sense to pay protection money, because it costs less than having your store smashed up or burnt down?

    It shouldn't be "foolish not to do it." It should be "fair to all involved to do it."

    • Sadly, a lot of law practice is like that these days -- you pay not because it's just, but because it's cheaper than going to court.

  • is not an excuse. The law itself may be unjust, but I don't understand why this is so hard to understand. There may be a reason you run a restaurant instead of work as a quant, but still.

  • All restaurants should switch to that fake "teenage" music from 1970's sitcoms.

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