Have you ever considered what the prices on a restaurant menu cover? Undoubtedly the prices cover the cost of food, the services of the chefs, waiters, busboys, and even the rent and furniture. But have you ever thought that these prices might cover the background music in the restaurant too?
In Title 17 of the United States Code, Congress expressly conferred to copyright holders – composers, songwriters, lyricists, and publishers – the exclusive right to perform or authorize the performance of their works publicly. The statute expressly defines both “perform” and “in public”. To “perform” a work is “to recite, render, play, dance, or act it, either directly or by means of any device or process.” The statute characterizes “in public” as either “(1) to perform or display [a work] at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered” or “(2) to transmit or otherwise communicate a performance . . . by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” So, under these broad definitions, just playing a CD in a restaurant constitutes a “public performance” of those works.
Although the statute does include certain enumerated exceptions, an infringer could otherwise be liable for severe financial sanctions: statutory damages currently range from $750 to $30,000 per copyrighted work, or for willful infringement, the court may increase the award to $150,000.
Just last year, the Eastern District of North Carolina found Raleigh’s Fosters American Grille liable for statutory damages in the amount of $30,450 for playing only four unlicensed copyrighted songs – and awarded $10,742.25 in attorney’s fees. In 2008, the Eastern District of Pennsylvania found Schwenksville’s Crazy Carol’s Sports Bar liable for statutory damages in the amount of $16,000 for playing only eight unlicensed copyrighted songs – and awarded $4,830 in attorney’s fees. Law’s Lunch & Dinner (Riverside, CA), The Vibe (Riverside, CA), Mad Dogs & Englishmen (Tampa, FL), Empire Dine & Dance (Portland, ME), Doug’s Burger Bar (Imperial, MO), Foxy Lady Club (Raleigh, NC), Vanishing Point Bar and Grill, (Mt. Airy, NC) Ron’s Landing (Hampton, NH), Bolero Resort & Conference Center (Wildwood, NJ), and Bacchus (New Paltz, NY) are but ten of the thousands of other restaurants in this country that have been sued for illegally playing songs without proper licensing.
A fine to that tune might seem rather severe, but our law nonetheless protects owners of musical works. It assumes that the owner of a musical work has the right to be paid for use of his property. Back in 1917, Justice Oliver Wendell Holmes, Jr. wrote that musical performances in restaurants are not “eleemosynary” but rather, “are part of a total for which the public pays” Herbert v. Shanley, 242 U.S. 591, 594 (1917). While “music is not the sole object [of a patron’s visit to a restaurant],” he continued, “neither is the food, which probably could be got cheaper elsewhere. The object is a repast in surroundings that to people having limited powers of conversation or disliking the rival noise give a luxurious pleasure not to be had from eating a silent music.” Justice Holmes believed that without pay, music would simply “be given up.” He thus found it necessary to incentivize the production and dissemination of new works in order to serve the Constitution’s Congressional mandate: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” No doubt, Justice Holmes saw the copyright owner’s exclusive right to perform or authorize the performance of their works publicly as an incentive that was indispensible to this end.
What do you think? Should restaurateurs have to pay just for playing their iPods at their restaurants?