Restaurant owner’s bad night
p2pnet.net News:- Jimi Hendrix’s “The Wind Cries Mary” may cost Michael Dorr, the married father of two and the owner of Imbibe in Portland, Oregon, his business, says The Oregonian.
Dorr has been hit by the American Society of Musicians and Publishers who claim when one of their reps paid a visit to his restaurant, he heard covers of three songs, including the Hendrix classic, performed by local band Black Notes, says the story.
Dorr, “didn’t think he had to pay the musicians and publishers group an estimated $2,000 to cover performances of copyrighted tunes” and now the ASMP is demanding between $750 and $30,000 for each song, plus attorney fees.
“It’s basically going to bankrupt me and put me out of business,” The Oregonian quotes Dorr as saying. “I can’t afford the lawyer and the fees. It’s going to close me down. It’s scary for me and my family.
“The restaurant business is hard and on top of other things, business is slow. This is the icing on the cake.”
Also See:
The Oregonian – Restaurant owner says songs may cost him his business, October 9, 2004
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October 11th, 2006 at 8:56 pm
Ray Beckerman could probably shed better light on this, but as I understand copyright law, I don’t see which exclusive right Imbibe, the restaurant, infringed.
Imbibe didn’t copy anything, it didn’t distribute anything, it didn’t perform anything. Black Notes, the local band, performed the song, apparently under the band’s own direction.
Of course, in this topsy-turvy post-Grokster world, “inducement” might play a role, but even then, I don’t see a pressing merit in this lawsuit. To me, this looks like yet another copyright owner trying to create a market for made-up rights the law does not actually grant.
I’m crossing my fingers for Imbibe; hopefully someone is willing to pick up this case pro bono and get it dismissed. I know the restaurant workers’ culture is very close-knit, so hopefully a bartender or server or host has an aunt or uncle or cousin or parent who practices law and is willing to help save a family member’s job.
October 11th, 2006 at 10:59 pm
Apparently, ASCAP is a frequent litigator. It wouldn’t be the first organization to make a business model out of selling settlements.
* San Francisco Chronicle, December 3, 2003 (cut and paste urls)
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2003/12/03/BUGL13CH5H26.DTL
* The Daily Toreador (Texas Tech), March 23, 2004
http://www.dailytoreador.com/media/storage/paper870/news/2004/03/23/LocalNews/Music.Publishing.Companies.Suing.Local.Bar-1278453.shtml?norewrite200610111831&sourcedomain=www.dailytoreador.com
ASCAP has also been criticized by participating artists, who claim they don’t receive their share of ASCAP’s license and settlement sales.
* Self-published songwriter Harvey Reid’s essay on ASCAP
http://www.woodpecker.com/writing/essays/royalty-politics.html
* Critical website chronicling the Stiffff Kitties’ dispute with ASCAP
http://www.ascapsukz.com/
The ASCAP business model has also faced legislative opposition through the years.
* Fairness in Music Licensing Act of 1998 (17 USC 110), which carves out exceptions for certain performances, defining them as non-infringing (cut and paste url)
http://www.copyright.gov/title17/92chap1.html#110
October 12th, 2006 at 1:40 pm
I am going to repeat something I have said over and over but no one is listening.
Even if Imbibe, the restaurant, had an ASCAP license, they could not perform “The Wind Cries Mary” for the simple reason that ASCAP licensee do not get a list of songs they are licensed (about 50 to 100 million) to perform.
ASCAP may say that their catalog is online and anyone can check it prior to performing a song. But that “catalog” is a fraction (10%?) of the songs that are licensed when ASCAP issues their blanket license.
And what if a customer asks for the performance of a song, such as “Happy birthday”. Since it was unplanned, is the requester told to come back tomorrow, so the ASCAP online catalog can be checked first?
And what if the songs to be performed not in the ASCAP catalog, what does that mean? Is it in the pulic domain and can be performed? Or is it with BMI? Or does the song have a rights holder? Clearly under such uncertainty and restraints, music cannot be performd in restaurants.
Roughly, about 90 percent of the songs licensed by ASCAP are not on their online catalog (repertoire, they call it). I personally suspect that ASCAP itself has no idea of which songs they license through their cover- all-songs blanket license.
Then ASCAP licenses businesses that have radio music beamed to the customers. But there is no way the licensee to know what the radio station will broadcast or if the radio station already has a license to broadcast the music.
I wonder, when will somene analyze the ASCAP model of licensing and all its senseles incongruencies, perhaps in court. I am amazed that no lawyer has beaten ASCAP in a case as a result of points I make here.
Rafael Venegas
http://www.gvenegas.com