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.