Pirated music in Rusty Rudder
A few years ago, Alex Pires made an offer that topped $1 million trying to get the Rolling Stones to play in Dewey Beach.
It was a long shot, but Pires, a partner in the Highway One LP that owns beach hot spots including the Bottle & Cork and the Rusty Rudder, tried his best to get close to the legendary band.
Earlier this week, Pires got his wish, but not in the way he envisioned.
The Rolling Stones, along with a host of other artists including the Red Hot Chili Peppers, Toby Keith, Willie Nelson, Sting and Elton John, are suing Highway One through Broadcast Music Inc. (BMI), an organization that collects licensing fees on behalf of songwriters, composers and music publishers.
The civil suit, filed in U.S. District Court in Wilmington, alleges that Highway One, along with Pires, partner John Snow and former partner Jim Baeurle, infringed on the copyrights of the artists by playing their songs without authorization through recordings and performances by cover bands.
United States copyright law gives the copyright owners the exclusive right to publicly perform or authorize performances of their work.
A business owner is responsible for getting permission from the songwriter through a performance-rights clearinghouse like BMI prior to any public performance of copyrighted music, whether it be a recording from a CD or a live band.
The suit alleges that on three nights -- Nov. 24 and 25, 2006, and April 7, 2007 -- 29 unauthorized songs were played at the Rusty Rudder, including the Stones' "Brown Sugar," the Chili Peppers' "Give It Away" and Roy Orbison's "Oh, Pretty Woman."
If Highway One is found guilty, statutory damages could range from $750 to $30,000 per song. With 29 songs in the lawsuit, the maximum could be $870,000. Highway One also could be ordered to pay BMI's legal fees. If the violations are found to be willful, the fines could increase to a maximum of $150,000 per song.
Pires and Baeurle would not comment on the suit. Snow could not be reached.
"This must be a slow news week," Baeurle said. "Why is this interesting?"
Buying a license
BMI sells licenses to users of music such as nightclubs, but the Rudder did not have a license, said Jerry Bailey, spokesman for BMI. A license fee through BMI for the Rusty Rudder, a large music venue that sometimes collects a cover charge, would be about $9,000 a year, he said.
The Rusty Rudder had a license with BMI from 1989 until 2000. Since then, Bailey said, BMI called the Rudder 66 times and sent 31 letters before filing the suit.
"If you look at the record of the phone calls to the business, it certainly appears that the business owner was avoiding us and procrastinating," Bailey said after looking through BMI's 5-inch thick file for the Rusty Rudder. "He is simply not wanting to deal with his responsibilities to the songwriters and the copyright holders."
The songs in the suit were either performed by a cover band or a recording of the song was played by a DJ, Bailey said. Both require a license under copyright law. Love Seed Mama Jump, Full Effect and the Fabulous Greaseband were the bands at the Rusty Rudder on the nights that the BMI investigators were at the club taking notes on what songs were performed or broadcast.
BMI represents the writers of about half of all copyrighted songs, with a repertoire of 6.5 million musical works. The American Society of Composers, Authors and Publishers (ASCAP) controls much of the other half. The Society of European Stage Authors & Composers (SESAC) represents a much smaller fraction of the songwriters.
The law is clear that restaurants and clubs like the Rusty Rudder have to pay, said Steve Gordon, a New York entertainment lawyer and author of "The Future of the Music Business."
"If you are listening at home, you don't have to pay a fee because that's a private performance," said Gordon, who is also an adjunct professor at The New School in New York City, where he teaches about the music industry. "But if a club is playing it, that's a public performance and they are responsible for payments."
Settling lawsuits
BMI files several dozen lawsuits such as the one against the Rusty Rudder each year, but only about 5 percent of them go to trial, Bailey said.
"Generally, when the business owner consults with an attorney and learns about his poor chances for a successful outcome in court, they seek a settlement," he said. "We don't want to put anyone out of business, but we do want to discourage more business owners from avoiding payment to songwriters."
Alan Garfield, who teaches copyright law at the Widener University School of Law, agrees that cases like this are usually settled.
"It sounds like they have a pretty straightforward case," Garfield said. "A lot of these BMI cases are fairly straightforward. The establishment does not fit into any exceptions, so they are publicly performing musical works without permission. There isn't much of a defense."
As for the other Highway One bars and restaurants in Dewey, the Lighthouse has a license with BMI, but the Bottle & Cork and Northbeach do not.
Bailey of BMI said he expected those two bars would be licensed under any settlement with the Rusty Rudder.
source: delawareonline.com
