Can ASCAP or BMI fine someone who plays a local soft music FM station as background music in a restaurant?

Yes.

Slightly condensed from [Link: ascap.com]

"An amendment to the Copyright Act, designed to clarify and expand the scope of the exemption for certain performances of music in food service, drinking and retail establishments by means of radio and television transmissions, became effective on January 26, 1999.

The amendment law applies only to performances by means of radio-over-speakers or televisions, only if no direct charge is made to see or hear the performances, only if the performances are not further transmitted beyond the establishment where they are received, and only if the original transmission is licensed by the copyright owners -- that is, the radio or television station, cable system or satellite carrier is licensed by the copyright owners or their performing rights organizations.

Two types of music users are exempt, under different standards: a food service or drinking establishment (defined as "a restaurant, inn, bar, tavern, or any other similar place of business in which the public or patrons assemble for the primary purpose of being served food or drink, in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly") and an other establishment (defined as "a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly").

A food service or drinking establishment is eligible for the exemption if it (1) has less than 3750 gross square feet of space (in measuring the space, the amount of space used for customer parking only is always excludable); or (2) has 3750 gross square feet of space or more and (a) uses no more than 6 loudspeakers of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; and (b) if television sets are used, there are no more than 4 televisions, of which not more than 1 is located in any 1 room and none has a diagonal screen size greater than 55 inches.

An other establishment is eligible for the exemption if it (1) has less than 2000 gross square feet of space; or (2) has 2000 or more gross square feet of space and satisfies the same loudspeaker and television set requirements as for food service or drinking establishments.

The new law should greatly reduce disputes as to whether particular radio-over-speaker and television performances are entitled to the exemption. And, of course, the law continues to require that public performances of copyrighted music by other means such as live music, records, cassette tapes, CD’s background music services, video tapes or laser discs require permission obtained either from the copyright owners or from their performing rights licensing organizations."

Any over the air TV and Radio that you can receive locally via an antenna are free to use.. no fees.

It sucks being wrong.... :-)

"no direct charge is made to see or hear the performances"

So don't advertise "$5 to watch the Olympics".

"only if the performances are not further transmitted beyond the establishment where they are received"

Don't use a projector and speakers to turn the building next door into a drive in theater.

"only if the original transmission is licensed by the copyright owners -- that is, the radio or television station, cable system or satellite carrier is licensed by the copyright owners or their performing rights organizations"

I guess you could contact the radio/tv station and have them send over documentation that proves they are licensed to air the content.

No, the question was can a restaurant be fined by ASCAP or BMI for playing the FM radio as background music. Yes they can be fined. Whether or not it will be upheld is a different question.

Lowhz, I think we can assume that anyone going through the hassle of fining someone will do so with a true belief that the fine will be upheld. It's true that anyone can sue anyone over anything, even without a chance in hell of it being upheld, and a corollary would be that someone from ASCAP might try to apply and enforce a fine and lose in the attempt. However, you're not answering the spirit of the question.

See, if someone fined a restaurant, the restaurant responded and got the fine lifted, then, in the end, they would not have been fined, right? The fine would have been rescinded. This takes us back to the question I originally asked but clarifies it by restating as something like


Hey, just a thought: how would you phrase the question so someone else could not take a shot at seeming to answer it while totally missing the point?

My friend has a bar & he is always getting threatened for playing FM radio and records.


A total monopoly.

"What are the ASCAP and BMI licensing requirements for playing the FM radio in a restaurant/bar with 60 seats, ~4000 sq ft. space, as background music? Or should my customer go with DMX or Sonos with a hotelradio.fm subscription and avoid licensing problems?"

DMX

The neat thing is that when ascap or bmi comes after them, you have an iron clad defense. "Some guy on the internet said it was ok"

No, if the square footage, speaker and television requirements are met, then "your website and federal copyright law said it was okay". No one should do anything without researching it themselves.
 

The PRO's are going to try and collect what they can try to collect. I don't care if you only have a licensed DMX player and a touchtunes jukebox.

When the PRO's discover the business license, they will begin to try to collect money from the business.

If you do have live music and it is only original content, the PRO's will not care because the band might 'warm up' with a riff from licensed content.

The PRO's will grossly exaggerate capacity (usually by using google maps to guage total square footage of the building. In our case our building is 2600 sq ft and ASCAP's initial demand was at 15 sq ft per person for capacity (173 people). They don't care about mop closets, walk in coolers, staircases or service areas.

ASCAP has a $283,000 per month lincoln center rent bill people! Industry parties to throw ect.

Pay UP!

If a business does have subscription content with integrated licensing fees (touchtunes jukebox, DMX pandora ect) you must prevent your patrons from spontaneously gyrating or undulating their hips to the beat because 'dancing' is a separate licensing fee x your capacity.

You are also liable for any spontaneous performance by your customers (singing along or perhaps a birthday party singing happy birthday without your PRO fee's paid up)

Happy Birthday Lawsuit
[Link: nytimes.com]

This restauranteur mistakenly thought his Muzak and Cable licenses covered music that a private party played in his business.

[Link: hartfordbusiness.com]

More traditional claim against the bar 69 taps for the incalculable damage a cover band did to BMI for 10 songs played by a cover band. Well, BMI says the damage is incaculable but they calculated it at 1.5 million ($150,000 per song)

[Link: northwestmusicscene.com]

City in tennessee sued for attempting to change it's name to 'rocky top'

[Link: wate.com]

Oldie but goodie, ASCAP has royalty demands against Girl Scouts because songs sung around campfire constitutes public performance blow up in it's face

[Link: nytimes.com]

It is $39 a month for Rockbot with commercial licensing. It is not worth being cheap over it. If a restaurant owner can't afford that, he should shut the doors anyway.