Musicians sue South Beach (Nightclub sued for playing music)

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.

What people around here are saying is that, just because you're allowed to hear something on the radio without paying for it, the music should always be free.

And actually, radio stations pay a blanket license fee also, but the cost of that is absorbed by advertisers, not listeners.

Many people don't realize that if you open a restaurant, or any other business for that matter, and play recorded music over a sound system or even a boom box you are required to pay the ASCAP for the rights even if you own the tape/cd because you are considered to be "profiting" from the public performance of the music. According to people in the industry ASCAP is very vigilant and actually sends out agents to search for violations.

Start IDing their agents and preparing "Wanted" posters.....LOL.

-Eric

Tell me how I'm not being a libertarian on this issue? One has to break the law to be a libertarian?

By your profile and your posts, you indicate you oppose several laws due to them being unconstitutional, ignorant and morally wrong. Now, you admit you support this law because you profit from it. Is that any different than, say, someone who works for the DEA being in favor of drug laws?

I clearly explained how the "creates an atmosphere in which the establishment profits(at the expense of the artist)" argument is bogus and circular in nature. So I oppose a certain portion of the copyright law - a portion you apparently support because you profit from the law.

This either poorly written or a case of bad editing. I have no idea what the club actually did. What do they mean played? On a jukebox? A live band? Kareoki? Drunk cowboys singing Nasty?

It really had me scratching my head too. Was it an impersonator? Cover band?

What the hell does public performance mean?

I'm Gillette. I make razors. In order to let people know I have a new product, I send out a bunch of freebies. Of course, I'll never make money if I give it away free all the time, so I have to charge sometimes too. It's up to me when I charge or give them away.

Im sorry, but playing a CD in a bar isn't "giving it away for free" because no one gest a copy they an take with them. It doesn't go home with them. It doesnt magically appear playing on their stereo. With this argument you present, ASCAP would have a right to require anyone who hears music pay a constant fee to them because they may remember it and hum it in their head.

I buy a CD, I play it for people - not give them a copy - they are more likely to purchase it than if they hadn't heard it(obviously). This isn't like a razor, or a toothbrush that is a consumer item many buy with limited or little knowledge of. People buy music because they have heard it and like it. No public performance, no sales. Its real simple.

"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.

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

Oh gee. Life without that swell song lineup. Whatever will one do. Golly. The horror.

Might actually have to play some music instead by someone with actual talent.

You're free to disagree with the law, but don't be surprised when ASCAP comes and tells you to either buy a license or shut down. They have the law on their side.

Yeah, whatever. Every American is a felon - they just haven't been arrested and charged with breaking whatever law du jour they broke in the two months.

And when I say "felon", I mean actual felonies.

This is an age-old argument. I was in radio for 15 years, and detested to pay the monthly ASCAP/SESAC/BMI fees JUST for the priviledge of playing music. It was, and still is, my contention that records would go nowhere without radio exposure (before the days of videos), so they should pay us...but, it doesn't work that way. They would send out people to listen/record your station, in search of unauthorized music. There was the story of one station manager who refused to pay the SESAC fees, as very few musicians/composers were licensed through them...and lo' and behold, they used an obscure instrumental behind a commercial, and the company heard it and fined them.

Might actually have to play some music instead by someone with actual talent.

Ah, but ASCAP represents more than 68,000 artists and over 4 million songs. Even "God Bless America". Click on the link in #19 and see how far ASCAP will go to extort money out of people.

was, and still is, my contention that records would go nowhere without radio(public) exposure

Thank You, sir, for bringing rational thought back in to this debate. We are being asked to pay ASCAP so that they(the artists) have a means to make money. Its like asking race car drivers to pay for the sponsors name on the car.

"What other good or service of demonstrable value would you expect to receive for free?"

OK fess up!

Where do you get all these "FREE" CDs?

So how do you propose to compensate those who write music? Specific ideas would be welcome. ASCAP and BMI and SESAC would be interested in a better method.

On the other hand, the Government could just pay musicians to write and the pay for them out of general tax revenues. (At no cost to the restaurants.)

People buy music because they have heard it and like it. No public performance, no sales. Its real simple.

And simpler still: If I control the copyright, *I* decide when it is given away and when it is subject to a fee. It's not up to you to "work in my best interest" by performing my work for your own profits. Again, why do you feel entitled to play a musician's work in your business for the sole purpose of increasing your business' profitability?

As for the idea that just because you don't get a physical copy, it isn't giving it away -- you're wrong. That's like saying that if I show a movie without paying rights, and let you leave without providing a videotaped copy, I'm not breaking the law.

Here's the simplest way to put it: You don't deserve to make money from my work without paying me for it. If my prices are too high, go somewhere else. I'll make my own business decisions, and fail or prosper the same as anyone else. But in the meantime, nobody deserves to improve their business by using something I thought up and copyrighted.

So how do you propose to compensate those who write music?

You mean they aren't paid unless ASCAP extorts money from private business owners?

Obviously, you know writers are compensated through selling the song to a record company(if they aren't a performer) and from subsequent sales of the song, if that's in the agreement.

Sorry, still a circular argument. You have no more "given away" anything than the toilet manufacturer does when he sells a restaurant a toilet. Both were compensated for the product they produced. Heck, a toilet maker would have a better claim that one "has created an atmosphere where the establishment wouldn't profit as much in abscence of public use of a product" since no one goes out and buys a certain brand toilet because they used it in a restaurant - like people do with music they would have otherwise never heard.

Some things, like licensing songs for karaoke machines and music-on-hold, are cheap and easy. Harry Fox Agency has set up an e-commerce site for paying royalties and they are reasonably priced (although for very low-cost applications $0.08 per song could get to be expensive. In Japan, the going rate for Karaoke MIDI tunes is VERY cheap, IIRC it is about $0.001.) This is the good and easy-to-work-with side of the IPRs industry.

But the whole issue of a CD player in a taco joint being a "public performance" borders on overreaching. The penalties are extorionate, and the fees so paltry it is obvious it's all a slimy game of "gotcha." The only serious money is finding the non-compliers.

The recording industry treats "industrial" users of songs well and gives them good pricing and simple tools for compliance, while consumers and little-guy restauranteurs get ripped off and treated like crooks, and the RIAA wonders why Saddam Hussein is more well-liked. They should buy a clue.

If you're so intent on changing the law, won't you run for Congress.

You're saying "We paid for OUR congresscritters fair and sqaure. And who are you to try to subvert the laws we bought?"

There are, of course, many ways to change the law. One way is to make bad laws unenforceable. For example, restaurants could play non-ASCAP music and then sue the hell out of the ASCAP agent personally for all kinds of things and ruin them financially. There is no reason to be nice, or even fair, to these worms. After all, the ASCAP plays hardball too.

The musician has *not* been compensated. There are different rates for putlic and private performance licenses. The club (if it paid for a CD at all) paid for a private license, then used it for a public performance to enhance its own profits.

It's not up to you to decide what I charge for my business. If I think a loaf of bread is only worth a quarter, I can't walk into a store, throw a quarter down and walk out. If I think it's too pricey, I can just do without, but I can't walk around paying what I think something should be worth and just taking off with the goods.

"An ASCAP spokesman says "Kumbaya" isn't on its list, but "God Bless America" is"

From the Girl Scout article. Since they did not defend there rights when Congress sang it on the steps then I propose that they have forfeited the rights to this song.

You mean they aren't paid unless ASCAP extorts money from private business owners?

Oh, the poor, hapless private business owners, who just happen to be stealing something they don't have the rights for...

Still nobody has answered why any of these businesses *must* have music, and why they should be entitled to enhance their business using someone else's work without paying for it.

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