Can Someone Explain The Irreparable Injury Of Playing Classic Jazz Tunes In A Restaurant?

from the it's-called-promotion dept

Steve Bryant passes on the news that Guiseppe’s Italian Restaurant in Washington is facing a lawsuit over playing some popular jazz tunes in the restaurant without paying the ASCAP fees. This sort of thing happens all the time, and the language used by the lawyers is probably pretty standard. However, it is amusing: “The said wrongful acts of the Defendants have caused and are causing great injury to the Plaintiffs, which damage cannot be accurately computed, and unless the Court restrains the Defendants from the further commission of said acts, said Plaintiffs will suffer irreperable (sic) injury.” I’d like to see the lawyers explain how playing a song in a restaurant is likely to cause “irreparable injury” (whether or not it’s spelled correctly). It’s also hard to believe that the “damages” cannot be accurately computed. They’re likely to be close to zero. I’d think that, especially with these kinds of songs, the much more likely story is that playing an old classic is actually more likely to act as a promotion, encouraging people to go out and purchase the music in question. However, we have to remember that in the view of the entertainment industry these days, there’s no such thing as promotional value to content. Still, perhaps the restaurant should ask the record labels suing them to pay them for promoting their back catalog.

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Comments on “Can Someone Explain The Irreparable Injury Of Playing Classic Jazz Tunes In A Restaurant?”

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Mark says:

Promotion... yeah right

I agree that the choice of words by the lawyers isn’t realistic. “…causing great injury…” But what’s all this talk about “promoting” the artists being played at the restaurant? I agree that the RIAA are a bunch of dicks, but let’s face it, the restaurant owner is providing entertainment to his patrons. He’s making money off of a restaurant “experience” and that includes playing nice jazz music while eating your food. You guys always talk about improving the “movie going experience”… why change your tune when it’s about a “restaurant experience”? And how many times have you listened to jazz music at a restaurant and then gone up to the manager and asked “hey, who is the jazz band that’s playing… I want to buy their CD!”

SailorAlphaCentauri says:

Re: Promotion... yeah right

Well, Mark, a person may not go up to the restaurant owner and offer to purchase a CD of the music they’ve heard, but they may go home and seek out the song and buy it in that fashion. I’ve been known to hear a song in the grocery store and try to get a copy of it once I get home, so it’s not unbelievable that someone would do something similar after hearing jazz music in a restaurant.

JC says:

Re: Re: Promotion... yeah right

In fact, I’ve done exactly that. More than once I’ve been out somewhere and heard a song and immediately looked for the original artist so I could purchase the music. Actually, more often than not, it is Classic Jazz or Classical music without lyrics that I do this with because the tune is something that you don’t hear everyday on the ‘butcher-it-till-it-stinks-like-shit” pop radio stations.

The music industry needs to get a clue. People aren’t going to stop playing music in restaurants, bars, etc. It’s become a national pastime and that is something the largest corporate powers (or even governments) will never be able to successfully take away without turning us into a police state.

Anonymous Coward says:

this is a joke, right !?

for what its worth i was in a high street music store (which shall remain un-named in case promoting it finds me with a court case on my hands) the other day. While there I heard a certain artist (who, again, i shall not name for legal reasons) who i had heard a lot about but had never got round to exploring properly as, despite reading a lot of positive review about, I didn’t expect that I’d like artist as it just didn’t sound like my sort of thing, being played over their in-store sound system. I actually liked the track a LOT more then i was expecting to and was tempted to buy the CD.

Ok, I admit that I didn’t actually leave the store with the CD in hand but this was more due to a lack of money then lack of interest in the music and I have full intention of going back to make the purchase after pay day.

If thats not promotion then what is ?! and its exactly what the restaurant is being punished for.

nowherenear says:

…and Krall, et al. In that case, yes “irreparable injury” would occur, but to the customer, not the artist. I would rather leave an establishment that played such harmful audio than patronize it. Really, you don’t create “atmosphere” with tired old “soft favorites from the 1970’s”, “smooth Jazz” or “classics from the ’60’s”, etc. Not to mention how loud some places belt it out.

Do this: hire musicians, who are in need of a break (and make sure they do not imbibe in the above mentioned genres – only originals), or use your noodle and hire a music/atmosphere consultant to provide interesting and unusual music. Oh, and dump the TV’s that show sports 24/7.

Anonymous Coward says:

Re: Music I've never heard of?

I’ve not had a clue what the title or artist was before – but I asked around and went looking for the tune. Eventually I’ll find it and, if I like the original as well as the cover I’ve heard, I’ll purchase it.

I’ve done this quite a few times and it is a direct result of the fact someone was playing a cover live or from a recording over a sound system.

It is promotion of content any way you slice it. These companies are only interested in milking every fucking penny out of every pocket they can. It’s a sad, sad thing that the great United States has become a cesspool of slimy lawyers, politicians and corporate bitches. We’re in a sinking ship of immorality and our government needs a serious wake-up call from the people that this shit is no-longer what we consider freedom.

Anonymous Coward says:

The said wrongful acts of the Defendants have caused and are causing great injury to the Plaintiffs, which damage cannot be accurately computed, and unless the Court restrains the Defendants from the further commission of said acts, said Plaintiffs will suffer irreperable (sic) injury.

This is standard language for a temporary injunction.

You have to show there is wrong being committed that cannot later on be properly mitigated by damages. If Mike cared to put in what their argument was, or, wait to see what it was, we may have a pieces of journalism rather than grandstanding to further his viewpoint

Reed says:

Re: Grandstanding to get this message across

“You have to show there is wrong being committed that cannot later on be properly mitigated by damages. If Mike cared to put in what their argument was, or, wait to see what it was, we may have a pieces of journalism rather than grandstanding to further his viewpoint”

I think you missed the whole point. The wording is ridicolous and although it may be the standard way of doing things we can all still stand back and gawk at how stupid the whole proccess is.

BTW who doesn’t grandstand to further their own opinion? This is a BLOG and it is about OPINIONS, so why don’t you grandstand yourself over to the newspapers so you can have your coveted “truth”.

Original music says:


If you hire a band to perform original music, you better make sure they have never signed any sort of agreement with any record label. There are incidents in Maine where a band performed their own music, but the label sued because the site had not paid the fees to the label.
It’s a scam by the labels. And they are stepping up enforcement. To the unknowledgeable bloke above..yes, if you play music in your business that you purchased, you can be sued, unless you pay the RICO-esque fees to the labels.

The infamous Joe says:

Not to nitpick..

Not that it matters, but the lawyers spelled everything correctly, the person who wrote the article linked above is the one that can’t spell.

In any event– how is this any different than inviting people to a party and playing music? Do we all need to obtain permission before playing music around people who didn’t actually pay for the music? (like anyone pays for music anymore!) I mean, sometimes I charge $5 a cup if I’ve purchased a keg… and usually I end up with more than enough to cover the cost, so I made a profit.

I’m interetsed in finding out exactly what rights I have when dealing with the music I purchased. How many people who don’t own the CD can I play it for before it becomes copyright infringement? I can see this getting ridiculous quick.

AMP says:

Re: Not to nitpick..

Everybody, there are specific laws regarding the ability to play music in public places. Guidelines have to do with the type of place (retail shop, bar, eating establishment etc.) also the size of the establishment in square feet etc. Your home is private property, ASCAP cannot make you pay a licensing fee to play music on private property (mostly be cause you paid the licensing fee when you purchased the CD, but also because you are not playing the music to create an environment geared toward driving revenue.

At any rate, there is a big difference between playing music in a commercial or public environment and playing music at your home.

Nasty Old Geezer says:

Re: Not to nitpick..

Joe, if you do that regularly you may have other problems, like the local cops getting you for running an unlicensed bar. Back to the topic, you can play music for yourself and your friends at home under Fair Use, and give the finger to ASCAP. At least until they buy enough legislators to get Fair Use repealed, and we all have to put coin slots on the stereos and PC’s.

Mark says:

Let's not be stupid...

“…i can’t listen to music that i enjoy and purchased if there are other people around?…”

Now come on. No one is saying you can’t listen to music at your house with friends around. The post was about a restaurant owner playing music for the enjoyment of his patrons. Patrons that are paying him for a good meal and good ambiance. The fact is the owner is making money indirectly off of playing the music.

And don’t bitch and moan about “promoting the artist”. I got no problem with user generated content and using music in it and all that crap. But if ABC or NBC is using a Beatles song you can be damn sure they are paying to use that music. It’s all about indirectly profiting from using someone’s music.

The infamous Joe says:

Re: Let's not be stupid...

It’s not nice to call people stupid, Mr. Mark.

Also, just because I make money off of it (or don’t make money) doesn’t mean they wouldn’t come after me.

For example: How long would it take for them to slap a cease and desist on me if I played my CD to the wole block? (at no cost to anyone). How about if I streamed it to my (ad free) website? I’m not making money, mind you.. just streaming my paid for music collection to my website, for whatever crazy reason. What if the owner simply played XM radio to his patrons? or FM radio?

I don’t think it’s as simple as “making money” anymore. I think they make and change the rules to suit their wants. Do’t get me wrong, I admire a man who plays the devil’s advocate, but in this case, they need to get over themselves.

Hazard says:

Re: Re:

He paid for the music, just as he paid for the artwork. What’s to stop the copyright holder from deciding that he likes the licensing racket, and require license fees to hang his art in a commercial location? It’s part of the atmosphere as much as the music, isn’t it? You’re software analogy stinks too, because with software you are given an opportunity to see said license, and choose whether or not you wish to agree to it. I’ve been buying CDs since they first hit the market, and have never been given a license agreement, or even seen a license.

Geren (user link) says:

"Fair Use"

Folks, when you purchase a CD, you purchase exactly that. The CD. The plastic crap, and that’s all you purchase. Just like any other software, you only are licensed to use it. More specifically, you are licensed to use it in a specified manner. And, with music CDs, that license is to play it for your own personal use. Playing it in your restaurant, like it or not, is not personal use, and, legally, you’re not licensed to do that.

If you want to play it in your restaurant, you have to purchase an additional license. It’s like buying a site license for software. And, it’s ASCAP who handles that for all of the record labels.

The restaurant owner needs to get legal and pay the ASCAP dues. In the grand scheme of things, it’s not that much money. And, once he pays his dues, he can play any music he wants in his restaurant.

Nasty Old Geezer says:

Re: Restaurant Jazz Music

Just because the record companies, ASCAP, RIAA, MPAA, etc. et. al. are vile pond scum, doesn’t make it right to violate copyright provisions and aviod paying royalties. ASCAP and others have nailed a lot of people for this for a long time, the owner should have paid the pocket change and charged and extra nickel for drinks.

Jack Sombra says:

The wording of the lawsuit is stupid but it is very much standard practice to pay for music played in a public/commercial setting (via licencing/royalties/musicians union..depends what method your country uses)

That soundtrack you hear in that movie you are watching? The movie makers are paying for it

That music in that ad you see in the breaks? Paid for

That music being played on the radio? Paid for

Music in the junkbox at the bar? Percentage goes to rights holder

Music in the clubs? Paid for

So yes the resturant pays as well

Sure it might also be promotion for the song/artist, but you have to draw the line somewhere otherwise the only time the the rights holder would make a penny is when they play it live

The following seems completly fair to me
“someone else making a profit, either directly or indirectly from the song? Then rights holder of the song makes something too”

Jason says:

Re: Sounds about right to me...

“Sure it might also be promotion for the song/artist, but you have to draw the line somewhere otherwise the only time the the rights holder would make a penny is when they play it live”

Sounds fine to me. That’s the way it worked in the old days before there was recording equipment. Let’s go back to that.

Someone who cares says:

Re: fair use

All in all I see a few points missing here.

If the restaurant purchased a CD then the Restuarant Corp/LLC (whatever entity it is) actually own the license to use it. So how can the restaurant owner be sued? Shouldn’t they be suing the restaurant. Symantics, I know, but an important distiction in ownership nonetheless.

I think it’s fair to assume that the owner of the restaurant hired a band to play music. Shouldn’t the band be sued? The band is the one making a profit off the music, I assume the owner would not have hired teh band had they not been able to play specific music. So if the band says it can and will play a specific type, for a fee, isn’t it then the responsibility of the band to secure rights to play the music? I’m pretty sure that’s how it works when one musical artist wants to cover another’s song.

The Man says:

As an owner

I own a bar and grill and haver personal experience in this. To play music, I either have to keep track of every song I play over our stereo system and pay each of the different assosiations per play, or purchase a system. So I had to shell out $1000 dollars for a proprietary player and get to choose from playlists of music that the content provider has agreements for. I then pay $70 a month to be able to play music in my establishment (per zone) and they pay the roalties for me.

The alternative is trying to skate by without getting caught. There are scumbag lawyers who look up records of establishments that are paying fees. Then they cold call or visit retail establishments to see if they are playing music. If you are playing music and have no record of paying fees…..your screwed.

Jackie says:

Those are the rules

Even though it sounds dumb, those are the rules, and at least in this case, some of the ASCAP money ends up back in the pockets of the songwriters. They’re a little better than the jerks at the RIAA. Similiar use laws apply to live stage plays. You’re supposed to pay a user fee, even if it’s an elementary school performance, if you’re using someone else’s stage play.

lar3ry says:

It's an old scam...

ASCAP does these sort of things all the time.

They have people with nothing better to do than call all the businesses in the phone book, and attempt to be put on hold. If they hear “music on hold,” the name of the business is passed on to ASCAP. They contact the business, and the if the business doesn’t cash out money to pay off the extortion, they sue.

They don’t care if the “music on hold” is a rebroadcast of a radio station that already paid royalties to ASCAP, BMI, and the record labels. They still want to double-collect.

They probably do the same thing to restaurants or other facilities where playing music in public can happen.

Anonymous Coward says:

I would rather have a string of “First Posts” than read posts with this level of misinformation and poorly thought out opinions.

First, owning a CD does not give you the right to play it in your restaurant, bar, store, etc. That is commercial use and is not covered in any standard CD license just like that announcement during football and baseball games.

Second, the restaurant benefits from playing the music. Why shouldn’t the artist benefit too? If I decide to linger for dessert partly because of the wonderful music, is the owner going to send the artist a portion of the check?

Third, I am an artist and a restaurant GM. We use a commercial streaming service because it was more cost effective (and less headache) than licensing, but we have always paid and always will.

Fourth, I have no problem with consumers fucking over artists, the RIAA, and the MPAA. I think those organizations are worse than the mafia, but that support does not apply to businesses.

Anonymous Coward says:

Re: Re:

When I worked in a restaurant in college, I played some of my CDs over the sound system. I didn’t even think about the licensing issues. Anyway, one of the CDs in heavy rotation was one by a little-known (in the States anyway) Australian hiphop band called Hilltop Hoods. Customers regularly asked the artist/album name, and it’s possible that a least a few people bought the CD later. And I know for sure that two of the waitstaff went out and bought the album, and another guy bought the Hilltop Hoods’ entire catalogue.

In my opinion, the restaurant benefited, but so did the artist. For independent/no label musicians especially, word-of-mouth is their best chance at actually making money.

Someone Who Cares says:

I just checked

and hot damn, the amended Fair Music Listening Act does enable the ASCAP to sue owners, and not neccesarily the band.
What I found most interesting however, is that most of what we are arguing in favor of, was included in the original bill that was never passed, because it was too “restricted” (according to the ASCAP).

To Anonymous Coward, i resent having my opinion rules as a “poorly thought out opinion”, in fact it may have been poorly researched, but I assure you it wasn’t poorly thought out.

Silly me, I mixed up what should actually be considered fair, to what the RIAA, MPAA, ASCAP, and every other “artists organization” think is fair. I wonder if they would think it’s so fair if they didn’t make millions already and having to wait for payday to buy a $20 CD was a thought that never even crossed thier minds.

Jason says:

Music and artists

What a funny system has evolved in the last 100 years. It seems to me that the album (CD, whatever medium) should promote the tour, and not the other way around.

We have an entire industry built around production of the album, making it sound the way someone decides to make it sound, then recording that. Then that recording is mass-produced and distributed. I have no problem with the industry making a small profit over and above recovering the costs of this process. How interesting that this has become the PRODUCT, however, and not the artist or artists. Therefore the industry attempts to milk every penny out of the album/song in every imaginable way.

What if, instead, the artist literally had to “sing for his supper” – getting paid to play gigs, and only did the recording as a promotional tool?

I know, I can hear the argument already, the recordinng is of such quality that there is no incentive to use live music.

Just throwing this out there for discussion…

Anonymous Coward says:

Re: Boo-ya

The artist DOES benefit, by getting his or her music heard.”

OK so “dine and dash” is OK because the chef gets his food eaten?

If you could copy a meal as easy as you could copy some music maybe you would have a point. Plus last time I checked when I am eating no-one else can taste what I taste. When I come to think of it, trying to compare these two is rather ridiculous! 🙂

Code_ex says:

Stuff the RIAA, MPAA and ASCAP

I have been a musician for a while now, and I have just started setting up my own studio so that I can record my work. I will NEVER under any circumstances let any of these greedy egomaniac corporates ever have any control of my music or what I can and can’t do with it, if anythng I’d rather give it away free and at least know people are enjoying it.

Anonymous Coward says:

This is such crap. What about pizza delivery guys, or bike mechanincs. Can’t they also be entitled to their own earnings too. And sales clerks – don’t even get me started on them. Why don’t they all think they are better than most others, if not then all of them? This is just bloody ridiculous. Why can’t RIAA and ASSPAC sit and spin like they try to make everyone else do? And then they will not be better than anyone. Ain’t that the truth. Fuck, I’m bored now.

Anonymous Coward says:

“If you could copy a meal as easy as you could copy some music maybe you would have a point. Plus last time I checked when I am eating no-one else can taste what I taste.”

Shouldn’t that be up to the artist (or chef) rather than the consumer?

Look, if the artist agrees to give the music away great, but by signing a record contract they have decided not to give their music away. If you take it without paying after they decide not to give it away, you are plain and simple stealing it.

No better than a shoplifter.

Gregg says:

The future of music

Gotta side with the ASCAP on this one — this isn’t a draconian RIAA stance to stop fair use, it’s a commercial business making money by playing music. Obviously if the owner didn’t think the music was helping his business, he wouldn’t have been playing it, and we wouldn’t be having this discussion.

What’s interesting, though, is where we go from here. ASCAP won’t be very successful in getting businesses to license the music–that’s not cost effective for most. But if ASCAP is effective in stopping restaurants from playing their music, then restaurants will have to turn to alternatives–specifically, local indie groups that don’t have record label deals, and want promotional coverage.

So ASCAP is pushing the industry where we expect it to go anyway, where music is given away for promotional use. The “unintended consequence” is that ASCAP is cutting itself out of the picture in the process. 20 years from now, people will be asking, “ASCAP? What was that?”

Newob says:

Stealing water

Well some places charge for serving water and other places do not … I guess that means if I am drinking water without paying for it then I am stealing from the places that charge and I am not stealing from the places that don’t. Which I guess means that places that don’t charge for serving water are abedding the theft of water from places that charge.

This fight over copyright infringement is all a rehersal for when we can instantly duplicate anything we want via temporal engineering. You copied that food without paying for it? It’s the death penalty for you! Nevermind that we could feed everybody in the world and er, what would money be useful for anyway?

Seriously though, money talks, so just wait and you will probably be able to watch the USA quickly devolve into a third-world dictatorship over petty copyright issues. The people who have money will go to war over their money; what else has war been made for? Maybe were better off before sound recording was invented.

J.A.P. says:

What about record stores?

Do they have to pay ASCAP fees for playing music publicly?
I know I bought the Lifehouse CD less then 5 minutes after walking into a Sam Goody’s and hearing “Hanging By A Moment” (back in 2000). I had never heard the band before that.

If record stores can do it, why can’t anyone else? Unlike restaurants, record stores play the music publicly for the express purpose of making money.

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