The crew at Kawika’s Ocean Beach Deli on La Playa. Photo by Thomas Pendergast.

by Thomas K. Pendergast

The proprietor of a small deli on La Playa in the Outer Richmond District, David

Nottage, did not think all that much about it when some customers

asked about the music he was playing.

Nottage runs Kawika’s Ocean Beach Deli, which seats about 20 people

and offers sandwiches, Greek and American food plus catering services. He likes to

help out his customers, so he made sure they got the information

they were asking for.

“They wanted to know ‘oh, what song is that?’ That’s the title trick. They come in.

They buy a coffee,” said Nottage, recalling the moment that he suspects initiated

his recent encounter with the enforcers of copyright laws.

“They go, ‘Oh, what song is that? I’m trying to remember?’

And so one of my guys goes back and looks at the song.

“‘Oh, how do you guys get your music?’ And we didn’t know any better so we just said

‘Oh yeah, we play streamed music.’ Then, of course, they go to

the website and see all of the things that we’re doing,” he said.

“Any restaurant out there that is looking to open, that wants to

play music, I highly suggest that they Google ASCAP and BMI

and these companies, just to see what their rules are, because I kind of wish I’d known.

I would have made alterations to what I was doing from the get-go.”

When he was formally contacted by the Society of European Stage Authors and

Composers (SESAC), he thought it was a scam at first. (SESAC is based in Nashville

and was bought by the private equity firm Blackstone this past January.)

No such luck for him. When he got an official letter from one of their representatives,

he knew this was for real, especially after reading the letter, which said:

“When you purchase a record, tape, compact disc, DVD or similar product

you are granted the authorization for a non-public performance, such as in your

home or car. There is no public performance right attached to the

sale of these products and if you decide to play this music in your establishment

you are required to obtain authorization from the

copyright owner or their representative.

“Most establishments and other businesses mistakenly assume

that it is the responsibility of musicians and entertainers to obtain

licenses to perform copyrighted music. The law says all who participate

in, or are responsible for, performances of music are legally

responsible. Since it is the business owner who obtains the

ultimate benefit from the performance, they are also responsible

for obtaining a license.

“There are actually different instances wherein an establishment like yours

would be required to obtain a license. One is you providing the music and second

is, your guest bringing in their own entertainment at your

facilities. Another scenario is when you have TV or radio and

music is being played within the premises, including background

music,” the letter concluded.

Nottage said the issue came as a surprise to him, having set-up

his business more than three years ago.

But none of this is surprising for Bill Lee, the senior vice president of licensing at SESAC.

“There is definitely ignorance regarding the copyright law, and

it’s not just germain to San Francisco; It’s throughout the country,” Lee said.

“Many small establishments just don’t know. They may have been doing it for

a year or two without any knowledge of the United States copyright

law and what they need to do. The smaller establishments,

we recognize a lot of them are not aware of what their responsibilities

would be under the law.”

When they find a business that is not in compliance with copyright laws

they do contact that business.

“We send out letters and we make phone calls, providing them with as much information

as we can to help educate them about what their responsibilities

are,” Lee said.

According to Lee, the SESAC does not keep records related to specific locations, like San

Francisco, and he denied that there was any spike in enforcement recently.

“It’s not that there’s been any increase or decrease in the licensing,”

he said. “Quite honestly, we don’t publish information. We treat all of our

licensing information as confidential. We don’t publish any information regarding

who is licensed, or the number of licensed locations.”

Nottage decided it was not worth the money to fight the

SESAC, nor to comply, so he has made changes to avoid paying

the fee, like playing commercial radio stations over his loud

speakers and only hiring bands that play original music. He also

features Hawaiian music groups, because they mostly play music

that is in the public domain and are not subject to copyright fees.

“In order to stream, it was $318 (annually). In order to have

live music, in case the bands did cover songs, they wanted another

$1,400 a year,” Nottage said. “And what happens is when you

pay one, the other two (BMI and ASCAP) come along right away

… and you end up paying all three.”

Jodie Thomas, executive director of corporate communications

and media relations for Broadcast Music Inc. (BMI), said the organization

also has a tiered system to determine fees levied for playing artists it represents.

“A license can cost as little as $350 per year,” Thomas said,

“depending on the size of the establishment, the type of music

being played (recorded, live, D.J., karaoke), and how often

that music is performed (once a week, once a month, etc.). A

venue’s occupancy factors into the cost of a license and is determined

by an unbiased third party, such as a fire department.

“BMI provides an easy cost effective manner by which businesses

can comply with the copyright law and compensate the

creators of music. Our license provides flexibility so that an

owner can change or make adjustments to the music license up

to four times a year.

“Any establishment that plays copyrighted music (live bands,

D.J.s, karaoke or a jukebox) in a public space is required by federal

copyright law to obtain a music license,” Thomas said.