Cautionary Tale: When Contemplating Live Music at Your Venue, Get a License

Last summer, a small band performed at a bar called 69 Taps in Medina, Ohio, near Cleveland. That evening, the band covered a number of popular songs that the mostly middle-aged audience had grown up listening to. The bar had not asked for a set list, nor had the band provided one. The band took requests, playing hits like “Brown Eyed Girl” and “Freebird” for a small audience. The problem? “Freebird” and nine other songs that the band covered that evening are protected by Broadcast Music, Inc. (“BMI”), a performing rights organization tasked with collecting royalties, and 69 Taps did not have a license to present music from BMI’s catalog.

 The bar was slammed with a lawsuit brought by BMI and the copyright holders of each of the ten covered songs, demanding that 69 Taps pay significant damages and attorneys’ fees. While it may seem harsh to sue a small-time bar for copyright infringement over an amateur cover band’s decision to take requests on a summer evening, this lawsuit is a testament to the fact that BMI (one of the “big three” American performing rights organizations along with ASCAP and SESAC) takes aggressive steps to protect the intellectual property of its artists. Because 69 Taps did not ask for a set list or post one on its website, BMI could only have found out about the performance of the infringing works through its survey process—by actually having a representative in the audience to keep tabs on the performance. Any venue that presents live music, no matter how small or obscure, should expect to be “surveyed” by the three performing rights organizations. 

The solution to avoiding these lawsuits is for venues to purchase a “blanket license.” For example, if 69 Taps had purchased BMI’s blanket license, it would have had unfettered permission to present any of the roughly 8.5 million songs in BMI’s catalog for a flat annual fee. BMI allocates shares of the licensing fee to the artists whose work is represented in the venue’s programming, as determined by the same survey methodologies that discovered 69 Taps’s unlicensed performances. The cost of the blanket license is much less than the cost of defending just one copyright infringement lawsuit, so if your business plans on offering live music, the safe bet is to purchase blanket licenses from all three major performing rights organizations. Otherwise, businesses may have to “face the music.”

Frank Gulino is an associate attorney with Washington, DC business law firm Berenzweig Leonard. He can be reached at FGulino@BerenzweigLaw.com.

It's Your Birthday and You Can Sue If You Want To

If you are one of the handful of people who loved the short-lived Aaron Sorkin show Sports Night, you might remember the scene where Dan (played by Josh Charles) gets called to the network lawyer’s office because the network has been billed $2,500 by the representatives of Mildred and Patty Hill. The bill came because Dan sang Happy Birthday to You to his co-anchor on the air. Dan is surprised to find that the song is copyrighted and the storyline continues with Dan trying to come up with songs in the public domain that he can sing for each of his coworkers’ birthdays. I remember laughing with friends about what our public-domain birthday songs should be, although we never got around to deciding. And now we may not have to.

Good Morning to You Productions Corp. has sued Warner/Chappell Music claiming that, despite years of collecting royalties based on two 1935 copyright registrations, Warner/Chappell does not actually own a valid copyright to the popular version of the song Happy Birthday to You that we all know. The case, pending in the U.S. District Court for the Central District of California and styled Good Morning to You Productions Corp. v. Warner/Chappell Music, Inc., No. CV-13-04460-GHK, will be one to watch this year. Filed as a putative class action with multiple claims, the case has been bifurcated so that the court will first decide the claim for declaratory judgment as to ownership of the song.

It took how many people to write that song?

The complaint contains a fairly detailed description of the alleged evolution of the song Happy Birthday, beginning in 1893, when the song Good Morning to All was published. The plaintiffs, all of whom paid royalties to Warner/Chappell to use the song, claim that the melody to Mildred and Patty Hill’s Good Morning to All passed into the public domain when the publisher who initially registered the copyright failed to renew the copyright and published the work with no copyright notice. They further allege that Mildred and Patty Hill did not author the lyrics to Happy Birthday to You, as evidenced by publication of the lyrics in 1911 and 1912 by various sources. The complaint alleges that the lyrics and music to Happy Birthday to You were first published together in 1924 and again in 1928 with no claim of copyright or attribution to the Hill sisters and that the song was used in 1933 in the world’s first singing telegram.

In 1935 Clayton F. Summy Co. registered two work-for-hire copyrights for Happy Birthday to You that did not reference Good Morning to All or the Hill sisters but instead attributed the music and lyrics to R.R. Forman and Preston Ware Orem. Eventually in 1998, those registered copyrights became Warner/Chappell’s property and are the basis for Warner/Chappell’s pursuit of royalties for use of the song. The plaintiffs claim that those two copyrights are either invalid because the music and lyrics were already in the public domain and were not authored by either Forman or Ware or are valid but limited only to the specific piano musical arrangement and the added second verse that appears in one of the registrations. Warner/Chappell of course disagrees and argues that the plaintiffs do not have enough evidence to overcome the presumption of validity of the two copyrights.

At stake for Warner/Chappell is roughly two million dollars in royalty payments per year. More importantly, the case will involve some really interesting issues of copyright validity and the scope of copyright protection for musical composition works. Discovery is underway and summary judgment motions are due in November of this year. Stay tuned for more discussion of the issues raised by this case in future posts.

Jennifer Atkins is of counsel to the Washington, DC business law firm, Berenzweig Leonard. She can be reached at jennifer.atkins@cloudigylaw.com.