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Monday, September 12, 2011

Beware Restaurateurs: Michael Jackson Could Cost You $40,000

Posted By on Mon, Sep 12, 2011 at 3:35 PM

click to enlarge We bet this restaurant in Dhaba, India didn't pay license fees - HITESHSHARMA
  • Hiteshsharma
  • We bet this restaurant in Dhaba, India didn't pay license fees
If you own a restaurant, beware Michael Jackson and R. Kelly.

Play their music -- or any other copyrighted songs -- in your restaurant or business without the proper license and you can face fines of $10,000 per song.

Fosters American Grille in Raleigh, N.C., played songs by those two artists -- and two others -- and lost a lawsuit last month that cost $30,450 in fines and $10,700 in attorney's fees.

To be exact, that's $10,287.50 per song.

How likely is that to happen in San Francisco?

SFoodie called a number of local restaurants to find out about their music policies. Most of the ones whose managers spoke to us appear to be legally covered, but we wonder about the ones we didn't reach.

Under copyright law, playing copyrighted music (even from a legally purchased source like a CD) in a public place such as a restaurant constitutes a "public performance" of the music. That public performance designation means the restaurant owes money to the licensing companies, which in turn pay some percentage of that to the band or artist as royalties.

BMI, ASCAP, and SESAC -- the three major licensing companies -- have scouts that look for newly opened restaurants and check in on other venues to make sure their licensing is legitimate.

For Benu, a music license was something management didn't consider when planning the opening, said administrative manager Carey Snowden. But right around the time of its debut, the restaurant received a notice from ASCAP asking for a licensing fee, and Benu complied with the request. Snowden said she didn't think anyone from ASCAP visited the restaurant in person to check up before sending a notice.

Our quick informal survey of some S.F. restaurants shows that they use several legal options to avoid liability.

25 Lusk uses a DirecTV subscription specifically for businesses that incorporates copyright licensing fees, according to General Manager Chad Bourdon.

RN74, a wine bar and restaurant, uses the Playlist Generation, a music curation service that also wraps copyright fees into its service price.

"It's the biggest hurdle restaurants come up against," said Director of Partnerships Alex Bird. "People are used to getting music for free," but it doesn't fly in a business setting.

Hillstone restaurants are part of a larger chain and have a staff member dedicated to music selection for all restaurants. The company pays the licensing fees for the music directly.

Andalu uses satellite radio. Resturant owner Calvin Schneiter says he pays for a commercial subscription that pays licensing fees on behalf of the subscriber.

Prices can vary widely for a direct licensing fee from any of the three companies as well as for anyone who'll license for you. Restaurant mangers said factors such as total number of seats, number of speakers, and "variety" of programming (such as brunch versus dinner music) can affect the price.

BMI sent Fosters a bill -- which it didn't pay -- for $6,060 per year. That's pricey, but it's still less than $40,000. Michael Jackson doesn't come cheap.

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Ellen Huet


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