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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 1 of 13 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: 2 of 13 ~ 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 5 of 13 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 3 JUN 41996 ITEM 17 7 of 13 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- 4 5 JUN 41996 ITEM 17 8 of 13 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 7 JUN 4 1996 ITEM 17 9 of 13 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