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No ASCAP Material To Be Performed Here

Published onMar 29, 2010
No ASCAP Material To Be Performed Here

On a recent night out at a small wine bar, I walked by an unimpressive piano pushed up against the wall of a narrow hallway with a sign above it reading, “No ASCAP material to be performed here.”  Bad news: signs such as these will not alleviate the owners of a venue from liability for copyright infringement if ASCAP licensed songs are performed without the purchase of a license.   To look charitably on the current state of affairs, one might say that many owners of restaurants, bars, and night clubs are confused (or blithely ignorant) about the whole ASCAP licensing system and are unsure whether or not they need to purchase a license.   Still, there are many venues which knowingly skirt the ASCAP licensing requirements and take the gamble that they won’t get caught and be forced to pay up.

The ASCAP licensing system has drawn media attention again recently owing to a lawsuit brought by ASCAP on behalf of Bruce Springsteen*  against Connolly’s, a New York City pub and restaurant where a live band allegedly played three of The Boss’ songs without first obtaining permission.   Bars, restaurants, and clubs that play music in their establishments are supposed to pay an annual licensing fee to ASCAP for permission to perform songs in ASCAP’s vast catalog.   According to ASCAP’s website, the amount of the license fee depends on “whether the music is live or recorded, whether it’s audio only or audio visual, the number of nights per week music is offered, whether admission is charged and several other factors.” The cost of an ASCAP license can be $1,000 or more for some venues.   What’s worse is that if an establishment wants to obtain the rights to the majority of musical works out there, they will need to purchase not one but three licenses – one from each of the big three performance rights organizations: ASCAP, BMI and SESAC.

It’s hard not to feel some sympathy for restaurant and bar owners in this scenario.   However, ASCAP argues that by not purchasing a license, venues like Connolly’s are putting others who play by the rules at a competitive disadvantage.  According to ASCAP, it had been after Connolly’s for two years for copyright violations.   When a bar or establishment like Connolly’s refuses to purchase a license after being contacted by ASCAP over alleged copyright violations, ASCAP sends an undercover agent into the bar to listen for any ASCAP licensed music being played.  Inevitably, the undercover agent will hear some song that is licensed by ASCAP, and the venue will be contacted again.   The cycle continues until the venue agrees to purchase a license or ASCAP decides to pursue legal action.   ASCAP has an overwhelming success rate in copyright infringement cases and these types of cases usually settle out of court – coincidentally, the amount of the settlement is usually equal to the cost of a license.   ASCAP’s lawsuit against Connolly’s is intended to serve as a public warning to other establishments in violation: ASCAP is not afraid to pursue its legal rights against infringers who refuse to pay for a license.

*  An interesting side note:  Bruce Springsteen has requested that his name be removed from the lawsuit. According to a statement on Springsteen’s website, he “had no knowledge of this lawsuit, was not asked if he would participate as a named plaintiff, and would not have agreed to do so if he had been asked.” No word yet on whether ASCAP has agreed to drop Springsteen as a plaintiff in the case.

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