Item 17 - Charging Rental Users of PCPA for BMI/Licensing Fees Charged to City
AGENDA. REPORT SUMMARY
,
TO:
Honorable Kayor and Kembers or the City
INITIATED
PROK:
DATE:
SUBJECT:
Charging Rental Users or performing Arts Center
por B.X.I. and/or other Licensing Pees Charged to City
ABSTlUlCT
Federal Copyright law authorizes licensing agents such as B.M.I. to
charge fees to venues such as the Performing Arts Center for copyrighted
material performed at the venue. This staff proposes to pass the cost
of such fees on to rental clients whose performances incur those fees,
unless such users show evidence of their own licensing agreements with
B.M.I. and/or other licensing agent having jurisdiction.
EHVIRONXEl!ITAL REVIEW
This item is not subject to CEQA review.
PISCAL IXPACT
No substantial impact. Monies taken in from rental clients will offset
fees paid by City to B.M.I. and/or other licensing agents.
ADDITIONAL PUBLIC NOTIPICATIOH AND CORRESPONDENCB
Additional notification sent to Performing Arts Advisory Committee.
RECOMM'RWDATYOH
It is recommended that the City Council authorize the poway Center for
the Performing Arts to collect fees from rental users of the Center
equal to fees charged to the Center by B.M.I. and/or other licensing
agencies arising from the activities of the rental user.
ACTION
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JUN 4 1996 ITEM 17
~ AGENDA REPORT
CITY OF POW A Y
\ --'0
This report is Included on the Consent C~lendar, Tl"1ere will be no se-:)ar~te dlSCUSSIOI"' ')f :f-,e report Cirlor to approval by the
City Counc:1 unless members oi the CouncIl. st~ff or public request It to De removed t,om ;ne "::onsent Calendar and
discussed separately if you wish to have thiS report puiled for discl.;ssio~. please (iil out a Slip Indicating the reoort number
and give it to the Cty Cerk prior to the beginning of the City Council meeting
TO: Honorable Mayor and Members of the City Council
FROM: James L. Bowersox, City Man~
INITIATED BY: John D. FitCh, Assistant city Manager
Robert L. Thomas, Director of Community services~
Michael J. Putnam, performing Arts Manager~ '
DATE: June 4, 1996
SUBJECT: Charging Rental Users of Performing Arts Center
for B.M.I. and/or other Licensing Fees Charged to
City
BACKGROUND
Federal copyright law (U.S. Copyright Law Title 17 U.S. Code,
Sec. 101 el.seg.) gives authority to licensing agencies such as
B.M.I. to charge performance venues such as the poway Center for
the Performing Arts fees for copyrighted material used in
performances, even though such performances were presented by an
independent third party such as a rental user. (see "The Legal
Aspects of Performing Copyrighted Music" attached)
The City Attorney has determined that the city is obligated for
such licensing fees. B.M.I. first contacted the City in early
1993 with the request for the city to sign a Licensing Agreement.
FOllowing a round of correspondence with B.M.I., the City
Attorney recommended that the City undertake a survey of other
municipalities who own and operate performing arts facilities.
Of the twenty four (24) cities contacted, ten (10) responded.
Among the ten cities, three (3) indicated that they had signed a
Licensing Agreement with B.M.I. and other Licensing Agencies.
Seven (7) cities did not have such Licensing Agreements. Of the
seven (7), four (4) cities indicated an interest of negotiating
along with poway to obtain the most favorable Licensing
Agreements possible.
ACTION:
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~
Agenda Report
June 4, 1996
Page Two
In the spring of 1995, S.M.I. renewed its demand that the City of
poway sign a standard Licensing Agreement. The matter was once
again referred to the City Attorney. It was the City Attorney's
recommendation that the City sign a standard agreement with
S.M.I. or risk litigation.
In August, 1995, the City entered into a Facility Music
Performance Agreement (#488822) with S.M.I. Fees are due and
payable quarterly.
S.M.I. fees are calculated based on the capacity of the facility
(PCPA=815 seats) and the highest ticket charged per each
performance in the quarter. (License Fee Schedule - attached)
J':IND:IHGS
An overwhelming number of performances presented by rental users
of the Performing Arts Center use some form of recorded or live
music. The number of performances presented by rental users in
1994-1995 was 166, with average ticket prices in the $12.00 to
$15.99 range. Using this formula, had a S.M. I. Agreement been in
force during FY 94-95, the City would have paid $13,280 in fees.
Licensing fees were not taken into consideration in the rental
rate increases approved by the City Council as part of the FY 95-
96 budget.
Rather than increase the City's subsidy of the Center to meet the
cost of these fees, it is proposed that the S.M.I. and other
licensing fees incurred by a rental users performance presented
at the Performing Arts Center be passed on to the user as part of
the fees and charges assessed by the City for use of the PCPA
facility. An exception is proposed for those rental user
organizations who themselves already have a Licensing Agreement
with S.M.I. and/or other licensing agent having jurisdiction,
current and in force.
The Performing Arts Advisory Committee at its regular meeting on
April 10, 1996 voted unanimously to recommend to the City Council
the adoption of this proposal.
BHV:IROHMEHT~L RBV:IBW
This item is not subject to CEQA review.
3 of 13
JUN 4 1996 ITEM 17
Agenda Report
June 4, 1996
Page Three
prSClI.L rMPlI.CT
Adoption of the proposal would have no significant fiscal impact.
Monies taken in from rental clients would offset fees paid City
to B.M.I. and/or other licensing agents.
ADDrTrONlI.L PUBLrc NOTrprClI.TrON lI.ND CORRESPONDENCE
Additional notification sent to Performing Arts Advisory
Committee.
RECOJOlENDlI.TrON
It is recommended that the City Council authorize the poway
Center for the Performing Arts to collect fees from rental users
of the Center equal to fees for which the City of poway is
obligated to pay to B.M.I. and/or other licensing agencies
arising from the activities of the rental user.
Attachments: 2
JLB:JDF:RLT:MJP:gs
JUN 4 1996 ITEM 17
4 of 13
,
I
w
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THE
LEGAL
ASPECTS
OF PERFORMING
COPYRIGHTED
MUSIC
Questions
Most Often
Asked About
Music
Licensing
JUN 4 1996 ITEU 17
THE LEGAL ASPECTS OF
PERFOR.'lING COPYRIGHTED Ml:SIC
Questions Most Often Asked About
Music Licensing
by Robert G. Krupka. Esq,
Kirkland & Ellis
Chicago, lllinois
INTRODUCTION
Robert G. Krupka, a partner in the Chicago
law firm of Kirkland & Ellis specializing in in-
tellectual property law. is a graduate of
Georgetown University and the University of
Chicago Law School. He is a member of the
American Intellectual Property Law Associa-
tion and Past Chairman ofthe Committee on
Broadcasting, Sound Recording and Perform-
ing Arts, and Subcommittee Chairman of the
Committee on Copyright and New Technolo-
gies. of the Patent. Trademark & Copyright
Section of the American Bar Association. He
has lectured extensively on copyright law
throughout the United States.
Broadcast Music, Inc. I BMIl represents apprOXl.
mately 100,000 songwriters, composers and mUSlC
publishers who own the copyrights to a 'Nide varie.
ty of musical compositions. The U.S. Copynght Law
ITitle 17, United States Code, See, 101 et seq,}
grants these copyright owners the right to perform
their music in public, and to prevent others from
doing so without their permission. It is customary
for these rights to be transferred to performance
rights organizations such as BMI. In turn, BMI li-
censes those people and entities that use music in
public places. such as restaurants. nightclubs. dis-
cos, retail stores. aerobic studios, amusement parks
and many other establishments and businesses! in-
cluding broadcasting and cable entities), so that
copyrighted compositions may then be played in
their establishments, or performed live, The B~ll
repertoire consists of more than 1.5 million compo-
sitions in every musical category.
Music is a means of communication and expres-
sion and is created so that it can be performed. The
creator of the original musical composition is enti-
tled to fair compensation for his or her artistic en-
deavor. Organizations such as BMI exist to assure
writers and publishers that they will be rewarded
for their work las the U.S. Constitution demands)
as well as to provide music users with a continuous
supply of new music. It is for this reason that B~lI
protects its affiliated songwriters, composers and
music publishers from unauthorized performances
of their music by requiring licenses from music us-
ers.
The time. effort and especially the cost. of moni-
toring and licensing all the world's music users is a
monumental task. To put such a burden upon the
c1990 B^!I
6 of 13
JUN 4 1996 ITEM 17
individual writer and publisher of a song would
mean that there would be little tlme left for them to
write or publish anything new, BMI, therefore, alle-
viates this burden by mOnItoring and licensing a
large number of musical works for a large number
of composers, authors and publishers. By entering
into music perfonnance agreements which author-
ize music users to perform in public all the works in
BMI's repertoire, BMI affords the music user with
a valuable service. Without organizations such as
BMI, music users would be forced to enter into a
separate license agreement with the copyright own.
er of every composition they wanted to publicly per-
form at their places of business. BMI, on the other
hand. provides ready access to its repertoire of mil-
lions of songs without the need to negotiate a li.
cense fee for the use of each musical composition to
be performed. By collecting license fees and moni-
toring the usage of the music, BMI is able to com-
pensate the writers, composers and publishers for
performances of their music.
Some business people who use music in their es~
tablishments may be unaware of the Copyright
Law, BMI attempts to apprise them of their need to
obtain permission to publicly perform music, inde-
pendently of its availability on records, tapes, radio
and tv stations, cable radio and tv and via the per.
formance oflive musicians, Should a user refuse to
enter into a BMI music performance agreement but
continues to publicly perform BMI-licensed music
without permission, 8MI has no choice but to en.
force the public performance rights through a law-
suit for copyright infringement.
The cost of using music without permission can
be high: pursuant to the Copyright Law, each musi-
cal composition which has been performed without
authorization will entltle BMI to damages of be-
tween $500 and $20,000. plus attorney's fees and
costs. The amount awarded is at the discretion of
the judge, who can grant an award as high as
$100,000 per infringement, if he determines the in-
fringement to have been willful.
Despite the fact that the Copyright Law makes
it clear that the unauthorized public performance of
music is illegal, a number of questions often are
raised about the extent of responsibility for the un-
licensed performance of music. The more common
questions and the answers follow.
For a: complete guide to subjects and I.'iSUI!S Jl.';-
cu.ssed Ln this broch.ure, please rele,. to the
Inde% appeanng on page 13,
1. Is the owner of an establishment legally re.
sponsible for seeing that music is licensed if it
is performed by independent contractors?
Yes. Even If the persons who actually perform
the music on the proprietor's premises are indepen-
dent contractors, rather than employees. the owner
of the premises is legally responsible if the musIc
perfonned is unlicensed. 1
Whether or not the proprietor knows what music
the performers are playing. and whether or not he
has any knowledge as to the existence or ownership
of the copyrights in the music performed, he is still
obligated by the Copyright Law to see to it that the
performance of music played on his premises IS au-
thorized.
Liability for unlicensed performances also rests
with the owner of an establishment that is leased,
when the proprietor knows that music is likely to
be played at the event and has a direct or indirect
financial interest in the event for which the estab-
lishment was leased. This holds true even if the
musicians are hired by the lessee. '2
2. Is a stockholder or offtcer of a corporation
which OWU8 an estahlishment personally li.
ahle?
Yes. A corporate officer with a direct financial
interest in the corporation and the right or abdity
to supervise the operation of an establishment
where music is performed. even ifhe doesn't exer-
CISe that right, is jointly and severally liable wlth
the corporate entity for infringement.
There is no question that a corporate director.
officer or stockholder who actually participates in
the infringement is liable along with the corpora.
tion.3 It is equally clear that an officer and prinCI-
pal stockholder who controls or has the right and
ability to control and set policy for the corporation
is personally liable.'
It should also be noted that a parent corporatlOn
is liable for unlicensed performances by its wholly-
owned subsidiaries.5
2
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JUN
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ITEM 17
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3. Is there an infringement of the public per-
formance rights if tbe establishment where
the music is performed is a private club?
Yes, The Copynght Act defines a "public' place
as one that is 'open to the public or...any place
where a substantlal number of persons outside of a
normal circle of a family and its social acquaintanc-
es is gathered.,.6 The legIslative history of the Copy-
right Law amplifies that definition by stating that
one of its main purposes in being written in that
manner was to make clear that "performances in
'semipublic' places such as clubs. lodges, factories.
summer camps and schools are 'public performanc-
es' subject to copyright control.,,7
Cases under the Copyright Law hold that perfor-
mances in private clubs which cater primarily to
their own members. for purposes of the Copyright
Law, are still public performances,8 So are perfor-
mances in private clubs where, despite attendance
restrictions, the public could attend the event using
. ,
mUSIC.
he cannot claim he was an "innocent lnfrinqer
Moreover. BM! advises propnetors of the need
to obtain a license to perform music licensed by
BMI. If they ignore that need. a court must award
BMI damages orbetween $500 and $20,000 pu
song, plus attorney's fees and costs. In most cases.
an injunction against further unauthorized use of
BMI's music1J will be issued as well. Courts have
held that the damages awarded should be substan-
tially greater than the license fees that would have
been paid by the music user.l4
4. Is the proprietor responsible for infringe-
ment by musicians if the musicians are not
paid?
Yes. The proprietor is liable even when the musi-
cians play only for tips from the customers, because
he allows them to play, The proprietor is responsi-
ble because the performance of music benefits his
business. Moreover, giving the musicians a place to
perform is indirect "payment."IO
Thus, the mere act of an unauthorized public per-
formance. regardless of payment, renders it an in-
fringement,
6. U the business where the music is per-
formed is operating at a loss or for charitable
purposes, is the proprietor exempt from the
responsibility of obtaining a license?
No. The need to obtain permission to perform
music publicly is not contingent upon the profitabIl.
ity of the proprietor.s business.15 A court will take
into account many factors. including the defen-
dant's regular use of music.
"Charitable" use of music is exempt from licens-
ing only under uery narrow exceptions. Basically, If
anyone involved with the performance. whether as
a performer, promoter or organizer. is paid. a music
performance agreement must be obtained. i6 The
fact that the music user may have operated at a
loss does not qualify that use as a charitable one."
5. If the proprietor tells the musiciana not to
play music in the BMI repertoire, is he re-
sponsible if they nevertheless do so without
his permission?
Yes, Cases have held that proprietors of premis-
es where performances occur without permission
are liable even if the musicians violate specific in-
structions not to play the music.l1
The law is clear that if the proprietor of an es-
tablishment knew that pennission or a license was
needed to have music performed on his premises,
7. Is a license required if the musicians only
play their own arrangements or versions?
Yes. The Copyright Law gives the exclUSIve
right for making arrangements of music to the own-
er of the cop)Tight in the music. IS Thus. a musiCIan
who purports to claim ownership of a particular ar-
rangement or version of a song in which he doesn t
own the copyright has no right to do so. Permission
for performance of the song must still be obtained,
8. If the record, tape, CD or sheet music was
lawfully purchased, does a proprietor have
the right to perform the music publicly?
No. The purchase of a copy of a song on sheet
music. records. tapes. compact discs or video tape
does not give the buyer the right to play it 10 pub-
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JUN
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ITEM 17
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lie. only in private. Since a public performance IS a
separate licensable nght granted by the Copynght
Law to the copynght owner, if a musical work IS
perfonned publicly wlthout pennission, it is a copy-
right infringement. regardless of the ownershIp of
the object con taming the music. 19
Yes. The Copynght Law requlres that Jukebox
owners and operators pay a fee and obtaIn J 11.
cense. .-ill unlicensed Jukebox :iubJects the uwner
and/or operator of the box to infringement ltabllity
If a jukebox does not fall within the defimtlOn uf..l
'coin-operated phonorecord player" as defined In
the Copyright Law, it is not entitled to the per-box
license and must be separately licensed by B:.lI J-S
another source of recorded music, such as that
which is commonly referred to as a "video juke-
box.'''~6 The jukebox license is not avadable when:
aJ the jukebox is not activated by COinS.
currency or other monetary units:
b) a direct or indirect admIssion charge is
made to the place where the jukebox IS:
CJ a list of the music is not affixed to the
jukebox or posted where the list can be
readily examined by the public:
dJ the patrons are not permItted to make
the choices as to the music to be played..!';"
9, If the proprietor already has a license from
another performing rights organization
named ASCAP. does that allow him to per-
form BMI.licensed songs?
No. BMI and ASCAP are separate organiza-
tion5.2o Each licenses a different repertoire ofmusi-
cal works, A proprietor licensed by ASCAP only al-
lows him to publicly perfonn music in the ASCAP
repertoire, A musical composition in which the pub-
lic perfonnance rights have been granted to BMI
can only be performed under a BMI music perfor-
21
mance agreement,
10. If the only music used is that played on the
radio or television, is a license required?
Yes, The proprietor of an establishment that
turns on a broadcasting station or cable channel in
a public place must obtain a music performance
agreement with BMI. 22 The legislative history of
the Copyright Law states that" ",any individual is
performing whenever he or she plays a phonorecord
embodying the performance or communicates
the performance by turning on a receiving set. ,,23
Thus, not only is the radio/tv station or cable opera-
tor/programmer performing the music (and needs a
license to do so I, but also the proprietor of the place
receiving the signal is performing the music and
needs to be licensed_ Whether or not the perfor-
mance is intended for the relaxation of the employ-
ees or for the customers is ilTelevant.l4
Although a limited exception in the Copyright
Law exists concerning use of a single radio or tele-
vision set of the kind used in private homes. the ex-
emption has been narrowly interpreted.2s
12, If the proprietor is willing to pay for the
use of music hut wants a special music perfor-
mance agreement, is he still responsible?
Yes. BMI is required to treat all similarly-
sItuated users alike,zs This means that BMI cannot
grant a music performance agreement with more
favorable terms to the proprietor of one establish-
ment than to the proprietor of another similar one.
As a result, the terms ofBM!'s music performance
agreement are basically the same for all music us-
ers of the same class and category (e.g., all restau.
rants, all concert promoters. all retail stores are ex-
amples of different classes/categories). This works
to the benefit of every music user, because he can
be assured that he will not be paying any more for
B:\11 music than his competitors.
11. If the only music played is on a jukebox,
must the proprietor still be licensed?
13, If the proprietor had no way of knowing
that the music was copyrighted, is he stillli.
able?
Yes. As of March 1. 1989, a copyright notice 15
not required on published works. 29 ~oreover, any
work created since 1978 is "copyrighted" merely by
its being created and set down on paper or in a re-
cording. 10 Whether or not it is registere(: in :he
6
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JUN 4 1996
ITEM 17
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14, If BMI will not provide a list of its songs
upon request 80 the owner can avoid playing
them. is the owner relieved of liability for
their unlicensed performance?
No. Numerous cases have held that BMI does
not have to provide a user or potential licensee y..;th
a complete list afits repertoire.31 BMrs failure to
provide one is not a defense to a copyright infringe-
ment suit. Furthermore. because of the constantly-
changing nature of the repertoire (since songs are
added daily), and the fact that by the time any such
list was printed it would be outdated, it is a practi-
cal impossibility to prepare an accurate list.
watchful toward those who use the musIc without
permission. Failure to obtain the appropnate li.
cense undoubtedly wm end up costing the bUSiness
much more than the annual fee for a music perfor-
mance agreement. The creator has a nght to be
compensated for performances of his music. BMI is
dedicated to protecting and enforcing that right.
Copyright Office has no effect on whether or not
permission is needed to perform it,
FOOTNOTES
L Famous Music Corp. v. Bay State Harness Horse
Racing & Breeding AasociatioD. Inc.. 554 F.2d 1213,
1214-15 (lst Cir. 1977); International Korwin Corp. Y.
Kowalczyk, 665 F, Supp, 652. 656 IN,D, ill, 1987),
aff'd, 855 F.2d 375 (7th Cir. 1988); Chess Music. Inc.
v. Sipe, 442 F. Supp, 1184, 1185 (D, Minn. 1977),
15, H tbe proprietor files for bankruptcy, does
his obligation to BMI end?
No. In order to perform music legally, a business
that uses music (e.g., to attract customers) is re-
quired to have a music performance agreement. As
such, the BMI agreement is a necessary expense of
the bankruptcy estate and will not be a defense to
an infringement suit for performances after filing
for bankruptcy," Also, it has been held that a judg-
ment obtained for unlicensed music performed
prior to filing bankruptcy is not dischargeable, That
is, the obligation of the judgment will continue to
exist against the debtor even after the bankruptcy
estate has been closed.33
2. Shapiro. Bernstein & Co.. mc. v. H~. Green Com.
pany, Inc.. 316 F.2d 304. 307 (2nd Cir. 1963): Italian
Book Corporation v. Palms Sheepshead Country
Club. 1I1c.. 166 U,S,P,Q. 326 IE.D,N.Y. 19751 IProprie,
tor held liable for unlicenled performances by less.
ee'. musicians becaule he rented his hall knowing
the event was a dil1Der-dance and sbow with music.
and supplied the food and liquor. served by bis em.
ployees).
3. Samet & Wells. Inc. v. Shalom Toy Co.. Inc. 429 F.
Supp. 895 rE.D.N,Y. 19771, affd without published
opinion. 578 F.2d 1369 (2d Cir. 19781,
CONCLUSION
4. FamoWi Muaic Corp. v. Bay State Harness HorSe
Racing & Breeding A.8Iociation. Inc.. 554 F.2d 1213.
1215 (1st Cir. 1977); Jobete Music Co. v. Media
Broadcaating Corporation. 713 F. Supp. 174
(M.D.N.C. 1988); Collins Court Music. Inc. ,... Pulley.
704 F, Supp. 963 (W.D, Mo. 1988): Rilting Music, Inc.
v. Speakeasy Enterprises. Inc.. 706 F. Supp. 550
(S.D. O. 1988); Foreverendeavor Music. Inc. v,
S,M,B_. 1nc.. 701 F, Supp. 791 (W,D, Wash, 19881:
Broadcast MUlic. Inc. v. Larkin. 672 F. Supp. 531 (D.
Me. 1987): Halnat Publishing Co. "'. L.A.P..A., Inc..
669 F. Supp. 933, 936 ID. Minn. 1987): Nick-ONal Mu-
sic Co,. 1I1c. v, P,O,S, Radio, 1I1c.. 656 F, Supp, 826,
828 <M.D. Fla. 1987): Warner Bros.. Inc. v. Lobster
Pot. Inc.. 582 F. Supp. 478, 481-484 II'.D, 0, 19841:
Boz Scaggli Music v. KND Corporation. 491 F. Supp.
908.913.14 ID, Conn. 1980l,
What are the music user's options if he decides
to continue to use music? He can go directly to the
copyright owner of every song ever to be played in
the establishment and buy a performance license
for each song directly. Or the user can sign a music
performance agreement with BMI and receive ac-
cess to more than 1.5 million popular songs of all
types and styles. Just as not paying suppliers for
products or services rendered will eventually cause
deliveries to stop. so too will not paying for the
creator's musical product cause the music to come
to an end. Th~ guardians of the cop)Tight will b~
5. Broadcast Music. Inc. "'. Hartman: Corp.. 9
U,S.P,Q, 2d 1561 IN,D. ill, 1988\.
6.17 U.S.C.1101.
7, H,R. Rap, No. 1476. 94th Congo 2d Ses., <Sept. 3,
19761 64. reprinted 1976 U,S, CO<k Congo ,{ Adm,
8
9
JUN 4 1996
ITEM I 7
10 of 13
New. 5659, 5677.78 (''House Report").
8. Fermata International Melodie5. Inc. v. Champi-
onl Golf Club. Inc,. 712 F, Supp, 1257 (S.D, Tex,
1989): Ackee Muoic. Inc. v. Williams, 650 F, Supp,
653.655.56 ID, Kan, 19861,
U.S,P.Q, 2d 1849 18th Cir. 19871. affg 622 F, Supp,
168 (W.n. Mo. 198ti>; Almo Music Corporation v. 77
Ea.t Ad.am.8, Inc.. 647 F. Su.pp. 123. 125 (::"oi'.D. m.
19861.
16, 17U.s,C. ! 110141.
9. &e, for example. Van Halen Music v. Palmer, 626
F. Supp. 1163 (W.D. Ark.. 1986); Hinton v. Mainlands
oCTamarac. 611 F, Supp, 494 (D,C, Fla. 19851. Except
with regard to unliceJUed mUliic ueed by veterans
ora-anizationa. which ,enerally does not constitute
an iDfriDgement unJe8. the event using music is
open to the feneral public, the law has not changed
since the ca.s decided. UDder the 1909 Copyright
AcL &e. for ezample. Lerner v. Schectman. 228 F.
Supp.354 (]). Minn. 1964); M, Witmark '" Son. ", Tre.
mont Social '" Athletic Club, 186 F, Supp. 787 (D.
Mus, 19601: Lamer v, Club Wander In. Inc.. 174 F,
Supp. 731 (D, MaIO, 1969),
17. SH HOlUe ~port, at 8:;, 3 NIMMER ~ 8IS(E) and
LaSalle Muoic Publilben. Inc. v, Higbfill, 3 U,S,P,Q,
2d 1949 (8th Cir. 19871. aff'g 622 F, Supp, 168 IW,D.
Mo. 1985). Sft alao Criterion Music Corp. .... BigC"s.
Inc.. 701 F, Supp. 802 (]). Kan. 19881,
18. 17 U.S,C. ! 106(21,
10, Buck v, Ro,en. 17 U.S'p,Q, 434 (E,D. Mo, 19331.
SH aUo Buck v, Pettijohn. 34 F, Supp, 968 (E.D,
Tenn. 19401,
19. Remick Music Corporation v. Interstate Hotel
Co, oC Neb....ka. &8 F, Supp, 523, 534,35 ID' Neb,
19441. aff'do 157 F.2d 744, 745-46 (8tb Cir, 1946), cert,
tkn.ied. 329 U.S. 809 (1947); Irving Berlin. Inc. v. Dai.
,Ie. 31 F.2d 832. 834-35 (6th Cir, 19291; Broadc..t Mu'
.ic. IDe. v. Re,al Broadcasting Corporation. 212
U.S'p,Q,824 (N.D.N.Y,1981).
20. 17U,S,C. I 116(e)(3I,
n. Warner Bro... Inc. v. O'Keefe, 468 F. Supp. 16
(S.D, II. 1977). SH aUo International Korwin Corp,
v, Kowalczyk, 665 F. Supp, 662. 856 (N.D, ill, 1987),
aff'do 855 F.2d 376 (7th Cir. 1988); Cbes. MUlic. Inc,
v. Sipe. 442 F. Supp, 1184, 1185 (D, Minn, 19771,
21. For a deKription of perfOrmiDI' right5 organiza-
tioD generally. He Broadcast Mu.ic. Inc. ", Colum-
bia BroadcaaliDll Syotem.lnc.. 441 U.S. 1,4-6 (1979),
12. 3 M. Nimmer. NlMMER ON COPYRIGHT! 14.04
[B] [2) [a] (1963) C'NIMMER'~; Ho.... R.port. at 163,
8ft Wow Ii: Flutter Muaic v. Len'a Tom Jones TRv.
ern.lnc.. 806 F. Supp. 654 IW.D.N,Y, 1985): Broadcalt
MWlic, Inc. v. Lyndon Lane... IDe.. 227 U.S.P.Q. 731.
733 (W.D, Ky, 1986); Broadcut Muoic. Inc, v. Dendri.
nOl, 220 U,S,P,Q. 886. 869.70 (N.D, ill, 19831. See oleo
Hideout Record.. And Distributon v. El Jay Dee.
Inc,.601 F. Supp, 1048, 1062 (D. Del, 1984).
22. Buck v. Jewell.LaSalle Realty Company, 283 V.S.
191 (1931); lnterDatioDal Korwin Corp. v, Kowalczyk..
665 F, Supp. 662. 656-58 (N.D, ill, 19871. affd, 855
F.2d 375 (7th Cir. 1988): Rodrers v, Eighty Four
Lumber Co..617F, Supp.1021 IW.D, Pa.1985): Broad.
cut Muaie, IDC. v. United States Shoe Corporation.
678 F.2d 816 (9th Cir. 1982); Sailor Music v. Gap
Sto..... Inc.. 516 F. Supp, 923 (S.D,N.Y, 1981l, affd,
668 F.2d 84 (241 Cir, 19811. cert. denied. 456 \:.S, 945
(1982).
23. BOUM ]Upon. at 63.
13. SH 17 U,S.C,II &02, &04(cl. 606.
24. Merrill v. County Stores. Inc.. 669 F. Supp. 1164.
1170 (]).N.H.1987I,
14. SH Ralnat Publilbinr Co, ", L.A.P.A., Inc.. 869 F,
Supp, 933. 936-38 <D. Minn. 1987); Nick.Q.Val MUlic
Co.. IDe. v. P.O.S. Radio. IDe.. 666 F. Supp. 826. 829
<M.D. Fla. 1987); Sailor Muaic v. Mai Kai of Concord.
Inc., 840 F. Supp. 629. 836-36 (]), N.H. 1986); interna-
tional Korwin Corp, v, Kowalczyk, 665 F, Supp. 852.
858-69. (N.D. m 1987). aff'do 856 F.2d 376 (7th Cir,
19881; Prater Muoic ", Williaml. 6 U,S,P.Q. 2d 1813.
1816 (W,D, Mo, 1987), SH aUo Billy Steinberr Muoic
". CarneY'1 Pub. 9 U,S.P,Q. 241 1749 (N,D, ill, 19881;
BM! v, Xanthal. Inc.. 674 F, Supp, 553 (E.D. La.
19871. aff'd in pari arut ...'d arut rem4llded in part.
855 F, 2d 233 16th Cir. 1988),
25. The en8teDce of any kind of external speaker
.ystem. such a. wall mounted or built.in ceiling
speakers. requires the performances to be licensed.
~e ea.. cited in Note 22. Moreover. a proprietor
is required to have a music performance agreement
where hislher locations have as few as two speak-
ers. Merrill ". BiU Miller's Bar.B.Q Ent..erpri~es. Inc..
688 F, Supp.1l72 (W,D. Tex. 19881.
15, LaSalle MUlic Publilben. Inc, v, H~bfill. 3
11
10
JUN 4 1996
ITEM 17
11 of 13
26. See Sweet Summer Night Music v. Aiken. 659 F.
Supp, 52 10, Alas, 1987\.
27. 17l:.S,C, ~ 116(e)(ll.
INDEX
28. United States v. Broadcast Music, Inc.. 1966
Trade Cases (CCHl. ,. 71.941 (S.D.N.Y. 1966); Broad.
cast Music. Inc. v. Niro'. Palace, Inc., 619 F. Supp.
958. 961.62 (N.D. W. 1985); Broadcast Music. Inc. v.
Moor.La,,', Inc.. 527 F. Supp, 758 10, Del. 19811, affd
without publi.hed opinion, 691 F.2d 491 (3d Cir.
19821.
SuhipC!t
Question number
11_1\1.1......'
Arran,ements, performance of musicians' own 7
ASCAP, license from 9
Baek(round music. public performance of 10
Bankruptcy, effect of on liability to BMI 15
''Cbaritable'' performances 6
Coin-operated pbonorecord players 11
CompulfJOry license, jukebox 11
Copyril'ht notice on SODI'. effect of on
proprietor'. liability 13
Corporate otricert and directors. liability of 2
Corporation. liability of for subsidiaries 2
Damales for infringement 5
Di8Char&'eability of judgment in bankruptcy 15
FactoriH. performances in 3
lndependent contractors, music
performed by 1
'1nnocent" Infrinlement 5
InatructioDl to musicians not to play songs 5
Jukeboxes, performance of music on 11
List of IOnl. licensed. demand for 14
Lodces, performances in 3
Lo.., liability of business operating at 6
Mistake, music played by 5
Nelotiation of special music performance
arreement, demand for 12
Non.payment of musicians by proprietor 4
Non.profit performances 6
Private clubs. performances of music in 3
Records. purchase of as license to perform 8
Rented premises. performances at 1
RadiooQver.speakers 10
Radio. public performance of music via 10
Schools. performances at 3
Sheet music. pu.rchasE' of 8
Statutory damages 5
Stockholders. liabilit~. or corporate 2
Summer camps. performances at 3
Tapes. purchaSE' of 8
Television. public performanc('
of musk ,'ia 10
Versions. performanc(' of mUliician~' own -;
29. 17 U.S.C. ~ 401(a), .. amended on October 31.
1988 by P,L loo.568.! 7(al,
30, 17 U,S,C, H 101. 302(al,
31. See. for example. Famous Music Corp. v. Bay
State Harness Horse Racing &: Breeding A.socia.
tion. 554 F.2d 1213 (1st Cir. 1977); Bourne Co. v.
Speelu. 670 F. Supp. 777. 781 (E,D, Tenn, 19871;
Broadcast Music. lnc. v, Beloff. 10 U,S,P.Q, 2d 1687
(D. N.Dak, 19881; Billy Steinberc MUlic v, Cagney'l
Pub. 9 U,S,P,Q,2d 1749 (N.D. llJ.19881; Broadealt Mu.
lie, Inc. v. Niro's Palace, lne.. 619 F. Supp. 958. 962
(N.D, llJ. 1985); Warner Brol., lnc, v, O'Keefe. 468 F.
Supp. 16.20 (S.D. Ia. 1977); Chess Music,Inc. v. Sipe,
442 F, SUpp, 1184. 1185 (D, Minn. 19771,
32,11 U,S,C, t 503(b)(I)(AI,
33. Broadcast Music, Inc. v. Elms. Bk. No. 87'()3936.
Adv, No. 89.Q161.K (E.D. La.. January 19, 19901; In re
Remick. 96 B.R. 935 (W,D, Mo, 19881; In re Canul.
1987.88 COPYRIGHT L DECISIONS 1126.069 (D.
Nev, 19861; In re Haloey. 1985.86 COPYRIGHT L, DE.
CISIONS '1125.950 (N.D. llJ, 19861; Broadcast Muoic.
Inc, v, Gabaldon. 55 B.R. 431 (D, N, Me". 19851
12
JUN 4 1996
ITEM 1 7
12 of 13
REP--T1NG OF ATTRACTIONS. FIRST REP--".lT PERIOD
L:st 311 attractions or .estl'..als :r~SefiteCJ ,or:o :;€ :J(ese~tec) ,;Lr'rg ::--e -Irs! ~9Por::""g ;:;er-cc)
~TTRACT10NS
,),TTRACT10N FEES
,See Schedule A belOw I
JAr:::: 51
;:I:lCM.iOl
'JAME:Sl
=:'C:L:;V
':::i'/ 3TAT::
3EAT:NG
:,.l,?~C:-'/
'::;~9
;3r3 ;1
-1IGHEST
;-A72:J
-I.C\.1ISSiCN
::::::lIC:::
::~;i~~1:,:;':: x .: =
=:::::::3
11.5'
5 It - 5 I =5 ?~. i"
--
5 =3
5 =,
3 5 =3
2,
],
>,
FESTIVALS (ONLY)
FESTIVAL FEES (See Schedule 9 below)
ENTERTAINMENT COSTS ~ATE
,llnl'1"I;rT' =~~
3'::0 ,:0 s.er =~s;I'lal
2.
. 5
x .01 =
(1'10)
, ,01 =
x
(10/0)
S
1.
. 5
S
IF MORE SPACE IS REQUIRED, ATTACH SHEET
TOTAL FEES DUE
AND PAYABLE
I c?~.::-
FEE SCHEDULE A
LICENSE FEE SCHEDULE
ATTRACTION RATE (NOT APPLICABLE TO FESTIVAl.S)
USE HIGHEST STATED AOMISSION PRICE CHARGED PER ATTRACTION
, C
I L SEATING CApjlCITY I No Chor." I I ! !
A UP to 58,00- $12.00. $16,00- $20,00- 525,00. 530,00
S OF FACIUTY or Donation.
5 Solicited $7,99 , 11,99 I lS,99 19,99 24.99 29.99 ana Over
I 1 o to 250 $ 12 $ 15 $ 25 S 35 S 45 S 55 $ 65 $ 80
2 251 to 750 $ 15 $ 25 $ 40 $. 55 $ 70 $ 90 r $115 $135
! 3 751 to 1,500 $ 25 $ 40 $ 70 $ 80 $100 $135 ! $150 I S175
> , 1.501 to 2,500 I $ 40 $ 55 $ 80 $100 I $120 $160 I $190 $210
I 5 2,501 to 5,000 I $ 60 S 75 $110 $135 $160 $205 5230 $260
6 5,001 to 7.500 I , 80 $100 S150 5190 5215 3270 5320 5350
: 7 I 7,501 to 10,000 $110 $135 $205 I $245 $270 $340 I $360 , $400
I 8 I 10,001 to 15,000 $170 $190 S235 , $270 I $310 S380 I 5410 $450
i 9 I 15,001 to 20,000 $235 $255 $295 $340 $380 $445 ; S490 $525
I 10 i 20,001 to 25,000 $285 $310 $340 $365 S420 $500 I $540 $575
, 11 I 25.001 to 40,000 S310 $340 $370 $420 $485 S555 I ,590 I $620 .
I 12 I 40.001 and over $430 $460 $485 I $515 , $555 i $620 5675 3710
FEE SCHEDULE 8 FESTIVAL RATE
THE FESTIVAL UCENSE FEE RATE SHAU. BE ONE PERCENT (1%) OF UCENSEE'. TOTAL ENTERTAINMENT COSTS OR $150, WHICHEVER IS HIGHER. 'Enter.
talnment costs" shall be deemed to mean the total monies expended for a festival by LICENSEE or L1CENSEE's authorized representatives and snail be limited to
main anractlons and supporting acts. and all monies paid (including the cost of room. board and transportation) to performers. supporting musiCians. ana
booking and other agents of the performers. The term "entertainment costs" shall not include stage props and equipment. unless the entity or person rendenng
or presenting entertainment services specifically requires specialized stage props and equipment.
(Print name of Si,ner)
Sign here. By
I (To Be Completed by LICENSEE)
t,+, o~ ,fW"Y., /J
Cb/t;~ Vl1k /G"tMn/;""
N e of Corporation, FJarrnersmp or Inaivlaual Ow r
Same le,al name of liCENSEE as on page I)
'u. ..J.--
ignaturel
/l'J//!.. It ,,~ I :r: lZ:r,;:.,.rn
It. (Prinr name of Signer)
e'~~;"J(Fill~~n !!!1::S~':fR-
(a) It corporation, state corporate office Meld: (b) If a partnersnlo. ...r-~
'Partner". (c) If inaividual owner, write "!nQlvldual owner'"
(To Be Completed by BMI)
BROADCAST MUSIC, INC.
By
is,gnarure)
(Title of Signer}
13 of 13
4
PLEASE COMPLETE SHAOED AREA ONLY
JUN 4 1996 ITEM 1 7