Clubs must pay to play, suit says

On April 22, a visitor to The Big Easy Blues Club on Market Street heard versions of "I Heard it Through the Grapevine," "Jumpin' Jack Flash" and "Total Eclipse of the Heart."

Those songs and nine others now make up the evidence in a 12-count copyright infringement lawsuit filed last week in U.S. District Court in Portland.

The club's former owners face as much as $360,000 in fines plus legal fees and court costs for the claim that they failed to pay a $1,800 annual license fee with Broadcast Music International, better known by its initials, BMI.

"This is how songwriters get paid in America," said Jerry Bailey, the Nashville, Tenn.-based spokesman for BMI, which controls roughly half of the published music in this country.

"We're not trying to put anybody out of business," Bailey said. "We want them to sign the license and keep playing the music."

The Big Easy's bind is familiar to club owners and concert promoters but little understood by the public. Operators who don't pay the licensing fee to BMI and its older rival, the American Society of Composers Authors and Publishers, known as ASCAP, risk expensive legal action.

Many business people have been approached and paid the fees without going to court, with reactions ranging from resignation to outrage.

Almost all music is copyrighted, and if it is presented to the public, as a record, as a live concert, on a television show or through a karaoke performance, the songwriter and the publishing company are entitled to a fee.

Since seeking permission from hundreds of thousands of copyright holders would be impossible, two large firms represent virtually all of the composers and lyricists in the world, providing access to their music.

ASCAP, founded in 1914, protected the copyrights of such songwriters as Irving Berlin and John Philip Sousa, who made their livings selling sheet music.

As the recording and radio industries grew, only ASCAP-licensed music could be played over the air.

In 1939, a group of broadcasters started BMI to license the work of country, blues and other regional musicians so that their work could be played on the radio.

Today, ASCAP licenses the work of 240,000 songwriters and publishers. BMI represents about 300,000.

The smaller SESAC, which used to represent primarily European and gospel music, has recently worked out lucrative deals with some prominent songwriters, including Bob Dylan.

Depending on the size of a restaurant, bar or nightclub, the type of sound system it uses and how much it relies on music for entertainment, licensing fees can range from as little as $300 a year to thousands.

Despite its name, The Big Easy Blues Club presents a wide variety of pop music by local and regional acts. Many bill themselves as "tribute" or "cover" acts, performing familiar published works by established artists.

According to Bailey, BMI first contacted the Big Easy's owners, James and William O'Brien, in February 2000, and has since tried to reach them through 110 phone calls and 44 letters to them and to their lawyer, David Hirshon of Portland.

In April, a BMI representative went to the club on three nights and established that music in the company's catalog was being presented. Called "researchers," the BMI representatives can be disc jockeys, musicians or moonlighting journalists, Bailey said. "We don't lie about it, but we don't necessarily tell them who we are either," he said.

When The Big Easy did not respond to the request for a license, BMI sued on behalf of the songwriters.

Hirshon said on Tuesday that he received the complaint on Monday and would not comment until he had time to understand it. He said the O'Briens have sold the club and would not comment.

The club's new owner, Ken Bell, said he was unaware of the lawsuit but planned to license the club with BMI and ASCAP. "I think it's the safest way to go," he said. "It's one of those things you have to do."

Concert promoter Nick Bloom was the executive director of Maine Arts in 1997, and remembers getting calls from the licensing companies when he was preparing to put on his first New Year's Portland festival.

Bloom has found that paying the fee is an unavoidable cost of doing business. People who go out for a good time want to hear familiar music, and very few acts can attract audiences with only original material.

While it might be tempting to try to avoid the fees, he always pays the royalties.

Margaret Lyons decided to go the opposite route. She had been operating Acoustic Coffee on Danforth Street in Portland for about a year, showcasing regular performances by singer-songwriters and a weekly open mic night, before hearing from the licensing outfits.

She argued that most of the music was original work but occasionally people would sing an old favorite.

So when she was told she owed thousands in licensing fees, she balked. Instead of paying to present copyrighted material, she created a policy that artists could perform only original music. She has since sold the coffee house but plans to continue an originals-only policy when she opens "The Snug," a bar and restaurant on the corner of Congress Street and Washington Avenue that most recently housed "Bottoms Up."

"Ultimately, it was very sad and caused a lot of bad feelings," she said. "I heard from a lot of musicians who say, 'This is how we get paid."'

And Lyons found that restricting performers to original music did not solve all of her problems. If they were ASCAP or BMI clients, they could not play in an unlicensed venue even if they were playing only their own music .

But Lyons decided that, ultimately, she would rather limit the music she presents than pay a fee she considers "just greedy."

"If I go to Deering Oaks park and paint a tree, the city of Portland doesn't come after me for a fee," she said. "If someone plays your song, its a form of flattery, and it can only help the original artist."

Other club owners have tried Lyons' approach but rarely been successful, said James Goggin, a Portland lawyer who represents ASCAP.

Most bar owners recognize the need to pay for a license. On rare occasions the licensing companies have to sue to enforce copyright law. Goggin said that ASCAP has filed a lawsuit in Maine every other year or so.

BMI's Bailey said his organization files "several dozen" lawsuits nationally each year but he can't recall the last time one was filed in Maine. He said the vast majority are settled out of court with the business owner paying a heavy fine.

He said that most songwriters are not performers and don't earn a living from their work. If they are lucky enough to write a hit song, they deserve to get paid.

"We would rather not file a suit if we can avoid it," he said. "We are a very patient organization."

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