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Licensing groups crack down on restaurants and bars that present music

Union Leader Correspondent

September 02. 2012 10:38PM

NASHUA - Some see them as the mob, thugs for a system that seeks profit before all else. Others sympathize with the work of performing rights organizations such as BMI and ASCAP, viewing them as vital to the sustenance of musicians.

Paul Foden, the owner of Fody's Great American Tavern in Nashua, was sued by the ASCAP for $150,000 four years ago.

'It was a Wednesday night when they came in,' he said. 'It was an acoustic guy playing a couple cover tunes, and they sued me for $150,000 because he played three songs that were on their list.'

According to its website, the American Society of Composers, Authors and Publishers is a membership association of more than 435,000 U.S. composers, songwriters, lyricists and music publishers of every kind of music.

ASCAP says it protects the rights of its members by licensing and distributing royalties for the non-dramatic public performances of copyrighted works. Covering artists from Duke Ellington to Dave Matthews, George Gershwin to Stevie Wonder, ASCAP licenses encompass all who want to play live or recorded music publicly.

Whether it's a jukebox in the corner of a pizza joint, a roller rink using an iPod, a barebones coffee house or a corporate stadium, ASCAP, Broadcast Music Inc. and other licensing organizations are sure to come knocking. Though they mostly target large-scale operations such as radio stations, the companies have staff dedicated to mom-and-pop shops such as the River Walk Caf in Nashua.

Even if you're a restaurant where the only cover song sung is 'Happy Birthday,' ASCAP owns the rights to that, too. The Internet abounds with stories of businesses sued by the company. In Foden's case, he settled out of court for $4,000.

ASCAP isn't the only licensing company these small business owners are forced to deal with. BMI is just as large, in addition to smaller groups such as SESAC.

In all, Foden pays the companies annually to the tune of some $4,000. As the owner of one of Nashua's central music venues, he's not happy about it.

'If there's no real musical interpretation, or liberties, if there's a song that sounds like it, it doesn't matter. They want the licensing rights to the beat,' Foden said. 'If you interpret a song in a different way and you're using it, they still want the rights of that.'

Though the cost-benefit analysis might not add up in his favor, Foden said there's more to it than just money.

In 2007 a former downtown Nashua bar, Manhattan on Pearl, was sued by ASCAP - one of 26 establishments across 17 states that ASCAP sued. The case was settled out of court for an undisclosed sum.

Greg Stevens owns Stella Blu, which replaced Manhattan on Pearl at the same location. The tapas bar hosts live music several nights a week.

'We don't know anything other than the fact that you have to pay these things and you pay them,' Stevens said. 'It's like an invoice that drops in out of the ether.

'We have people come in and play music and we pay them,' Stevens said. 'And then we have maybe a radio on and we pay for that service as well. At some point, if you're the proprietor, it's hard to understand where one is leaving off and the other is starting. We're paying multiple times somehow for the same thing.'

The River Walk Caf is the city's premier venue for folk music, hosting a Friday-night open mic that regularly draws 20 singer-songwriters. After being contacted by the licensors, the shop's owners banned cover music.

Some view this as the ugly side of music licensing, tearing into the folk tradition of borrowing from others. Bob Dylan covered his antecedents, and in turn, Dylan became the most covered American musician. But at places such as the River Walk and other venues who choose not to pay up, the tradition grinds to a halt.

One way around the licensing is to seek written consent from artists to cover their songs, something that some River Walk performers do.

Though he hasn't made any money in royalties, local singer-songwriter Matt Jackson is a member of ASCAP. He said he would consent to anyone who wanted to play his music, and would consider it an honor.

Jackson said there's a silver lining that comes with the prohibition of cover music. Not being able to play other people's songs encourages artists to perform original material.

'But on the other hand it's a folk tradition to borrow other people's songs, kind of throw your own spin on it, and a lot of people work hard on their renditions of songs,' he said. 'Not being able to express that because of a fear of lawsuit sucks.'

Neither ASCAP or BMI could be reached for comment.

Bill Terrio, owner of the recently opened MacKenzie's Tavern on Main Street, said he received a call during construction, before the business opened in the spring.

'They were almost like gangsters,' Terrio recounted. 'I said I'm not (playing music) right now, they said, 'Oh, yes you are. I can hear it playing in the background.''

They even knew what song it was. And it was one of theirs.

Hoping to build its reputation by hosting live music, MacKenzie's agreed to pay ASCAP. And then SESAC came along, and BMI will surely follow.

'It is a scam and I don't even know if it's legit,' Terrio said. 'I'm just getting threatened, and who wants to find out the wrong way?' Terrio said the licensing business hurts the bar industry, which already invests big to host acts that might not bring enough business to cover costs. If it gets to be too much, he said he might drop live music entirely.

'I have to pay all sorts of money just to have music in my place,' he said. 'They're like the mafia - they keep running around after you.'

Chris Williams, president of the Greater Nashua Chamber of Commerce, said he feels for the establishments receiving calls from ASCAP and BMI, which has never lost a lawsuit.

'But at the end of the day, it is the law, and I think that if the shoe were on the other foot, and a local restaurant felt like its food was somehow being taken advantage of, they might think differently in that situation.'

Though the chamber doesn't have an official position on this, Williams said it leans toward the little guy.

'I certainly understand the situation in which the River Walk Caf finds itself, or Bonhoeffer's (Caf), or MacKenzie's. These guys are startups. They're operating on a shoestring as it is, there isn't a lot of money in the caf or restaurant business to begin with, and then you have to cut into that slim margin even more to pay the man … it can be frustrating, especially when a lot of mom-and-pop restaurants probably don't take into account that that will be an expense.'

Business Nashua

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