INTRODUCTION

This blog is written by Arizona copyright lawyer Steve Vondran. Vondran Legal has handled hundreds of federal court litigation cases since its founding in 2004. One important area we practice is restaurant IP law, which deals with restaurant, bar, and tavern owners who are accused of two main things:

(1) illegally broadcasting boxing, soccer matches or other sports programming;

and

(2) infringing the music rights of companies like ASCAP and BMI by publicly performing songs in their establishment without the proper commercial license.

This blog discusses the latter.

WHO IS BMI?

Broadcast Music Incorporated, commonly known as BMI, is a performing rights organization (PRO) based in the United States. It is responsible for collecting and distributing royalties on behalf of songwriters, composers, and music publishers when their musical works are publicly performed.

BMI was founded in 1939 and is headquartered in Nashville, Tennessee, with additional offices in New York City, Los Angeles, London, Atlanta, and many other locations worldwide. It serves as a bridge between music creators and businesses that use music in their public performances, such as radio and television stations, streaming services, bars, restaurants, and concert venues.

As a PRO, BMI functions with the goal of ensuring that its affiliated songwriters and publishers are fairly compensated for the public use of their compositions. They issue licenses to businesses that allow them to use the BMI repertoire of songs in their performances. The fees collected from these licenses are then distributed as royalties to the songwriters, composers, and publishers, either through direct payments or via music publishers.

BMI represents a vast catalog of musical works composed by a diverse group of artists from various genres. Their repertoire encompasses countless celebrated artists from past to present. Some of the major artists who are currently represented by BMI include Taylor Swift, Beyoncé, Khalid, Eminem, Rihanna, Maroon 5, Coldplay, Bruno Mars, Ed Sheeran, SZA, Jay-Z, Sam Smith, Post Malone, Drake, Lady Gaga, and many more.

Overall, BMI plays a crucial role in the music industry by ensuring that songwriters and publishers receive appropriate compensation for their creative works while allowing businesses to legally use music in their public performances.

They will also aggressively pursue business owners who broadcast their repertoire music without the proper license. As you can see, here is a list of (35) docket entries for lawsuits filed just in the State of Arizona.

SAMPLE ALLEGATIONS IN THEIR FEDERAL LAWSUITS

• Plaintiff Broadcast Music, Inc. (“BMI”) is a corporation organized and existing under the laws of the State of Delaware. BMI's principal place of business is 7 World Trade Center, 250 Greenwich Street, New York, New York 10007. BMI has been granted the right to license the public performance rights in 20.6 million copyrighted musical compositions (the “BMI Repertoire”), including those which are alleged herein to have been infringed.
• Since October 2022, BMI has reached out to Defendants over forty (40) times, by phone, mail, and email, in an effort to educate Defendants as to their obligations under the Copyright Act with respect to the necessity of purchasing a license for the public performance of musical compositions in the BMI Repertoire.
• Included in the letters were Cease and Desist Notices, providing Defendants with formal notice that because of their failure to purchase a license, they must immediately cease all use of BMI-licensed music at the Establishment.
• Plaintiffs allege four (4) claims of willful copyright infringement, based upon Defendants' unauthorized public performance of musical compositions from the BMI Repertoire.
• All of the claims for copyright infringement joined in this Complaint are governed by the same legal rules and involve similar facts. Joinder of these claims will promote the convenient administration of justice and will avoid a multiplicity of separate, similar actions.
• The specific acts of willful copyright infringement alleged herein, as well as Defendants' entire course of conduct, have caused and are causing Plaintiffs great and incalculable damage.
• By continuing to provide unauthorized public performances of works in the BMI Repertoire at the Establishment, Defendants threaten to continue committing copyright infringement. Unless this Court restrains Defendants from further acts of copyright infringement, Plaintiffs will suffer irreparable injury, with no adequate remedy at law.

WHEREFORE, Plaintiffs pray for judgment against Defendants, jointly and severally, for the following relief and damages:

A. Defendants, their officers, agents, servants, employees, and attorneys, all persons acting under their permission and authority, and all persons who are in active concert or participation with any of the Defendants, be enjoined and restrained from infringing, in any manner, the copyrighted musical compositions licensed by BMI, pursuant to 17 U.S.C. § 502;

B. Statutory damages pursuant to 17 U.S.C. § 504(c);

C. Costs and reasonable attorneys' fees, pursuant to 17 U.S.C. § 505;

D. Statutory interest on damages, costs, and attorneys' fees;

E. Such other and further relief as the Court deems just and equitable.

LEGAL COMPLIANCE TIPS FOR RESTAURANT, BAR, AND TAVERN OWNERS

Here are some general tips if your establishment receives a letter from BMI or ASCAP (or any other agency alleging copyright infringement inside your establishment):

1. Don't treat it as "SPAM" or a "SCAM." Many clients come to me and say, "I didn't take the letter seriously, as I thought it was a scam." If you are not sure if it is a scam or not, contact a copyright infringement lawyer to discuss.
2. It is usually best to seek to settle these matters outside of court. This is for two reasons; (1) a federal lawsuit will end up costing you more, because their copyright attorneys have to get involved, and you will need to hire a lawyer as well (businesses cannot represent themselves in court), and (2) a federal court lawsuit becomes a matter of public record, and easily searchable on Google (i.e., not the best thing you want if you are trying to build an awesome brand).

This is not an exclusive list, but just realize, when it comes to broadcasting sports events in your establishments, and playing or performing music, these are rights held by third parties, and you need to pay the proper fee to avoid legal pursuit by aggressive Plaintiff IP counsel. These companies have been known to look into public Facebook ads to see if you are having a live music event at your nightclub or sports bar, or if you are showing a PPV boxing match (another prime target with companies like J&J Sports Production, G&G Closed Circuit Events, and Joe Hand Promotions). They may also send out private investigators to document the infringement.

Many new restaurant owners (new to the business) can get caught up in this non-compliance issue.

In these cases, it is wise to seek legal counsel experienced in negotiating settlements, and obtain the proper settlement terms.