Musicians sue South Beach (Nightclub sued for playing music)

Amarillo Globe-News ^ | 3.12.03 | Jim McBride

[mhking]

Musicians sue South Beach

By JIM McBRIDE
jmcbride@amarillonet.com

Attorneys representing singer-songwriters Madonna and Lenny Kravitz are suing the owner of an Amarillo nightclub, alleging the club infringed on their federal copyrights by playing their songs without authorization.

The copyright infringement suit was filed in federal court March 4 against Scott Williams Elkins and Pickerington Bicycle Club, which operates South Beach, 2600 Linda Circle. The suit says the club is owned by Elkins.

The Globe-News was unable to reach South Beach representatives for comment on the suit Tuesday.

According to the suit, the various plaintiffs secured exclusive rights and privileges to copyrights for various songs.

The suit claims the club infringed on the plaintiffs' copyrights by giving public performances of copyrighted songs on the club premises.

The suit claims the defendants have not sought or obtained a license agreement from the plaintiffs or the American Society of Composers, Authors and Publishers, known as ASCAP, a performing rights licensing organization that the plaintiffs belong to.

Plaintiffs claim ASCAP representatives contacted the defendants and sent numerous letters informing them of their liability under federal copyright law and that the defendants have continued to perform copyrighted music without permission during business hours.

Songs named in the lawsuit include "Justify My Love," written by Madonna Ciccone and Lenny Kravitz; "Erotica," written by Madonna and Shep Pettibone; "Nasty," written by James Harris III and Terry Lewis; and "Get the Party Started," written by Linda Perry.

Plaintiffs are seeking between $750 and $30,000 in damages for each of the five counts of copyright infringement named in the suit.

The suit also asks that the club be barred and permanently restrained from publicly performing the songs named in the suit.

[tdadams]

a Google search of ASCAP and racketeering will make for interesting reading.

You've said this so many times now, but you've yet to show a single example. This is beyond pointless. It's now almost humorous.

[eno_]

You seem to think all such invitations are addressed to you, so I'll make it clear:

Everyone except tdadams is invited to google up, for example, ASCAP+ racketeering, and have a good read. tdadams can go back to being one of the three customers DRM'ed music downloads have, and his pre-beta release of Palladium.

[gitmo]

I gave examples of lots of things businesses can purchase and then display / make available to customers to enhance their business.

You stated 'The value of your painting, car, etc. are built into the sale price. The value of music to a business (hundreds? thousands?) is not built into the price of a song (about $1.70 at retail).'

I replied that those $1.70 sales add up to millions, and that the value of the song is equivalent to the amount people pay for it.

You replied "I assume you're talking about album sales? How does that relate to a business using the song? "

Right back where we started.

The value of the song is the price of the album. If I play the song in public it is no different than if I display sports paraphenalia in my bar. The diminishing music industry is using extortion.

[tdadams]

You confusion is only a consequence of your lack of knowledge in this matter.

A person buying a CD for their own home and a business playing a song for the public are two distinct and separate situations and shouldn't be held to be similar. Therefore, however many people buy the CD for their home is irrelevant to the value of the music for the business owner. The business owner is putting the music to a different purpose and so it's legitimate to charge him differently for that music.

A product (music) is priced according to its value to the specific user. For a business owner (that uses the music to bring in customers) to expect to pay no more for the product than a consumer listening to it at home is absurd. It's of more value to him and he should pay accordingly.

[supercat]

Read the original article on this thread again - a club being sued by ASCAP artists - and then ask yourself if there would be any point if ASCAP only paid based on radio airplay.

I didn't say ASCAP only collected based on radio airplay, but from what I've read that's what's used for determining the percentage payouts.

In other words, from my understanding, if the works of a particular composer represent 0.1% of the music played in a given month on the radio, that composer will get not only 0.095% of the money for radio airplay, but 0.095% of the money from nightclubs etc. as well.

Although there are some artists for whom the percentage of radio airplay and percentage of nightclub performances will be in line with each other (and for whom such a formula would be fair), there are some others who get overpaid at the expense of others who get underpaid.

[tdadams]

This is getting a bit tedious. If you're a songwriter and don't like ASCAP's pay calculations, go to the competition, BMI or SESAC. Simple as that.

[gitmo]

You confusion is only a consequence of your lack of knowledge in this matter.

I've noticed in your posts that you're exceedingly arrogant and condescending. (1) I am not confused. (2) Lack of knowledge doesn't seem to be at issue. This issue is what is right and what is wrong. If I have a lack of knowledge, you have not pointed out what knowledge I lack. I suspect the lack of knowledge is on your side.

A person buying a CD for their own home and a business playing a song for the public are two distinct and separate situations and shouldn't be held to be similar. Therefore, however many people buy the CD for their home is irrelevant to the value of the music for the business owner. The business owner is putting the music to a different purpose and so it's legitimate to charge him differently for that music.

Music is not a commodity. It is a product. You cannot charge differently for a product based on what the purchaser intends to do with the product. You can reduce prices for volume purchases, but to discriminate in pricing for any other product would land you in prison for price-fixing. Somehow the music industry has convinced congress to make exceptions for them. This is wrong.

If I manufacture a product, let's say an air freshner, I cannot charge more for that air-freshner if the purchaser intends to use it in his restaurant as opposed to using it in his home. Once I purchase the air freshner, it is mine to use as I see fit. I can use it to freshen my home, my car, an outhouse or my business.

A product (music) is priced according to its value to the specific user. For a business owner (that uses the music to bring in customers) to expect to pay no more for the product than a consumer listening to it at home is absurd. It's of more value to him and he should pay accordingly.

Again, this is price-fixing. The fact that the congress has written laws to allow price-fixing for the entertainment industry doesn't justify it. It is still extortion using the legal industry as the hired gun.

[tdadams]

Music is not a commodity. It is a product. You cannot charge differently for a product based on what the purchaser intends to do with the product.

This statement of yours is just patently incorrect. It only serves to reaffirm what I said before that you're arguing with lack of knowledge on this subject.

Pricing music differently for consumers and for businesses only makes sense when you consider that the home listener gains nothing but personal satisfaction by listening to it, but the business arguably is using it to enhance his business, bring in customers and increase his profits.

The practice is called price discrimination and it's used all the time by all sorts of businesses.

The phone company charges a business more for long distance than they charge you. Restaurants charge more for adult meals than for kid's meals. They charge more for dinner than for the same menu item at lunch. The movie theater charges students less than non-students for the same movie. All of this is perfectly legal and not unethical. It reflect business realities, realities you're fighting hard to overlook.

Specific to the music industry, if ASCAP's practices are wrong, as you say, why have they never been deemed illegal under the Clayton anti-Trust Act or the Robinson-Patman Act?

[tdadams]

It never ceases to amaze me how so many people here on FR, who would describe themselves as conservatives and free-marketers, are just itching to regulate the music industry out of existence.

Try to think beyond the surface for a minute. If you favor passing regulations to eliminate price discrimination in the music industry, do you also favor it for other industries as well?

How about crusading against airlines? Two seats on the same flight, one customer pays $200 the other pays $800. Is that inherently wrong if both are willingly paying what it's worth to them?

This attitude of regulation just seems so antithetical to what I'd expect from people on Free Republic!

[gitmo]

The airline example is a strawman. The seats are offered for different prices at different times. If you had a standing rule that you would charge different prices depending upon the reason the person was traveling, you would have a problem.

No one wants to regulate the music industry out of business. The industry is thriving. I know their profits are not what they have seen in the recent past, but it is still a highly profitable industry.

But the industry is using practices that would land the average businessman in prison. I attended the requisite annual classes on price fixing and anti-competitive laws a couple of weeks ago. They warned us against exactly these practices. And I know several upstanding businessmen who have been sentenced to prison terms for just such behavior.

[tdadams]

Again, you're wrong. It's no secret that airlines do in fact structure their prices to extract more money from those who are traveling on business than those on vacation.

You failed to address any of the other examples. You also failed to address why ASCAP's practices have never been deemed illegal under any U.S. trade laws.

[gitmo]

Of the hundreds (thousands) of airflights I've taken, I've never once been asked why I was flying. And they have never sneaked into my business meetings and sued because I didn't pay protection money to allow me to conduct business.

I believe in Liberty. If I purchase something I should not fear Gestapo tactics in the guise of lawsuits because the company I purchased from doesn't like what I do with MY property.

[Lower55]

I agree. If I buy it, it's mine. If I rent it, that's another story.

If I had a nightclub, I'd play my music in it no matter how much it bothered the customers.

Do all the patrons of a restaurant/whatever have to like the provided music to trigger the mafia?

What if people went to a club for the drink specials...in spite of the music?

What if my Toby Keith cd was stolen? Does the thief automatically agree to copyright laws even though he didn't purchase it or agree to anything at all?

If someone parks his truck outside a club and listens to his own cd's real real loud, and the people in the club can hear it, who would ascap try to extort then?

If a song is played near a canyon, does one have to pay more for the echo?

If a band plays cover tunes in a club, but the band sucks and people can't even recognise the song they're trying to play, should that be charged to the club owner?

How much of the song can be played before it becomes an infringement?

What if they play it in a different key?

What if the patrons of a club were all deaf?

Can people dance like Britney Spears without getting sued by some mafia-type entity?

If a club seats 1000, but never gets a crowd over 6 people, what happens then?

If you make a legal copy of a cd, is that copy covered by the extortionists?

What if you laughed throught the whole song on another track? Would it then be a parody?

What if it was sung in a different language? But the translation was all wrong?

What if you played the song backwards?

Bored now, going to watch American Idol....gonna tape it...lol

[tdadams]

They have to sneak into your business meetings or ask you your purpose of flying. The airlines know their business and they know their customers. They can target business travelers for higher prices without ever having to ask you a thing. Where do you think the advance purchase discounts and the Saturday stayover requirements came from?

Apparently your idea of liberty is to take something you legally own (a CD) and misappropriate it for personal gain, then protest that you're well within your right to do it, notwithstanding what the law says, simply because you feel it's right and we should just trust that you know better than our elected legislators.

[tdadams]

Make that "They don't have to sneak into your business..."