Memphis music venue & nightlife bar Newby’s forced to shut down


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Newby-closes-due-to-music-caseOriginal article published December 3, 2014 on

Memphis bar Newby’s has been forced to close its doors after a failed attempt to raise money with a crowdfunding project.

The owner of Newby’s, Todd Adams, turned to crowdfunding to try and save the popular and highly rated bar and music venue which is set on the strip of Highland Ave near the University of Memphis.

Newby’s had long been known to be a popular venue for independent and upcoming artists as well as national acts to perform inside the music venue.

Owning the venue since 1997, Adams set out to raise $25,000 over the crowdfunding site GoFundMe but failed to reach his goal.

Part of Adams financial problems were due to a copyright infringement lawsuit the club faced after licensing giant Broadcast Music Incorporated (BMI) built up a case against the venue for not licensing music with BMI.

There was also songs reportedly performed (covered) by music acts which the club didn’t have a license for performance rights. This all was reportedly secretly recorded by BMI researchers who were hanging out at the now defunct bar.

Of the $25,000 goal, Newby’s was able to reach $16,355.


BMI has placed a nationwide target on small business owners


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Here’s the deal.  BMI — the famous music licensing company — has filed lawsuits against 12 bars and restaurants around the country, claiming the establishments have been playing their songs without paying a licensing fee.  And it gets a lot worse.  For every BMI song that gets played on a bar jukebox or by a DJ without the proper fee being paid, BMI is entitled to $150,000 in damages.  So “Love Child” could literally put a bar out of biz.

As for how BMI picked the places to sue — it appears to have been pretty random.  Some of the targets are The Fox Hole in West Jordan, Utah, Mojo Main in Newark, Delaware, Whiskey River Ranch, (we think it’s in Springfield, Oregon), Whiskey Bones Roadhouse in Rochester, Minnesota, Kildare’s Irish Pub in Chapel Hill, North Carolina and Pig ‘N’ Whistle in NYC.

BMI is obviously sending a message to hundreds of thousands of bars and restaurants across the US of A — playing “Free Bird” ain’t so free after all.*

*excerpt from TMZ

Does a local business need licenses from ASCAP, BMI and SESAC to play radio or TV on their premises?


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Original article By David Oxenford on July 9, 2015

Twice this morning, I was faced with the question of whether a business needs a license to play a radio or TV station on their premises, once in a story in one of the broadcast trade publications (see the article here, in the You Can’t Make This Up column toward the bottom of the article) about a gas station that thought that they got around paying ASCAP, BMI and SESAC fees by using “6 or 7” consumer radios around the station. After I saw that article, I thought that it was worth writing this article, as the difference between 6 and 7 radios could make a real difference as to whether the business needs to pay music royalties.

Broadcasters need to be careful about urging their clients to play their stations at their business locations. There are very specific rules, and if the rules are not followed, liability can result. But, as detailed below, there are some exceptions to the obligation of commercial establishments to pay ASCAP, BMI and SESAC that apply specifically to establishments that play only FCC-licensed radio or TV stations. But the details of the exceptions must be observed or there can be issues. All of the performing rights organizations have contractors who travel the country, checking out retailers, bars, restaurants, and other commercial establishments to make sure that they are following the rules. There are periodically press reports about these rights organizations seeking royalties (sometimes through legal actions) from coffee shopsnightclubs, and even farmers markets that publically perform music without signing license deals. So these commercial establishments need to know the rules about music use to avoid becoming a target. As set forth below, the rules are very specific, and broadcasters can actually benefit from the exceptions as, in the limited circumstances set out in the Copyright Act, businesses can play music from FCC licensed outlets without a license, but music from other sources could present an issue. But be careful, as there are very specific rules – and the difference between 6 and 7 radios could be a real issue.

Under the Copyright Act, any business can be exempt from the royalties if they use one consumer-type audio or video player.  But they can have only one such device. Under this exception, the source of the content is not an issue. That’s because it is assumed that the use of this device is to keep the employees entertained.  But it allows for the use of only a single radio or TV.

A newer exception adopted in the 1990s goes further. This exception is based on the size of the business and it applies only when the business plays an FCC licensed radio or TV station (or cable or satellite TV programming) where the originator of the programming has paid the appropriate fees. The business that takes advantage of this exception can’t charge an admission fee.  And the business must fit in one of these categories:

It has less than 2,000 gross square feet (excluding parking – but the parking area must be just used for parking – so the area around the gas pumps or other actively used outside areas would probably count toward the 2,000 square feet);

  1. Or, if it has more than 2,000 square feet then:
    1. If the business only plays the radio, it can have no more than 6 total speakers, no more than 4 of which can be in one room (or adjoining outdoor space)
    2. If the business plays TV, it can have no more than 4 TVs, none bigger than 55 inches (diagonal screen size), and no more than one in any room (and there can’t be more than 6 speakers providing the TV audio, with no more than 4 in any one room)
  2. For “food service or drinking establishments” (bars and restaurants), there are slightly looser rules, in that the square footage in 1 and 2 above goes up to 3750 gross square feet, but the limits on the number of speakers and size of the TV screen are unchanged.

Note that this exception is not limited to consumer-type radios, but the business can only play FCC licensed radio or TV (cable and satellite TV count as TV too).  No CDs, no hooking up to an iTunes library and no streaming services.  If a business plays any of these other services, or features live music, then they must get public performance licenses.

A couple of other issues are worth mention. Right now, the payments are made only for the public performance right in the underlying musical composition (otherwise known as the “musical work” – the lyrics and musical notes that make up the song). No royalty is paid by businesses to the copyright holders in the sound recordings under Federal law (but see our concerns about whether certain court rulings may cloud this conclusion when dealing with state laws and pre-1972 sound recordings, and see this article about the Register of the Copyright calling for a more general sound recording performance royalty). However, services that provide music to commercial establishments, and transmit that music through digital means (called “business establishment services”), do have to pay a sound recording royalty, though not for the public performance, but for the “ephemeral copies” that these services make (see our article here).

Also, it is worth noting that broadcasters have some coverage for playing their own signals under their license agreements with ASCAP and BMI. Under those agreements, they can play their music on their own premises without limitation by the number of speakers or size of building set out above, and otherwise play their own signal, as long at the revenue derived from those broadcasts is included in the revenue on which the ASCAP and BMI fees are paid. But stations cannot pass on the coverage under their licenses to their customers, e.g. a station cannot allow a local hotel to play the station in all of its halls and common spaces through some sort of deal with the station. And the license does not cover stations who do live concerts or who play music other than that contained in their signals (e.g. playing CDs while on a remote).

The rules are very specific, and this summary does not cover all of the nuances, so be careful telling your advertisers that they can play your broadcast station in their commercial establishment without carefully parsing out the details of the exception. Call an attorney or someone very familiar with copyright law, as penalties can be steep for copyright violations. That difference between a 6th and a 7th radio could make a real difference!


Music Industry Targets Memphis Small Businesses – FOX13 News, WHBQ FOX 13


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Skimo’s Image Courtesy of FOX

“Skimo’s is a mom and pop shop where you can get brick oven pizza, pastas, salads and a juicy burger.

‘It’s 100-percent Angus burger, eight ounces, so it’s a half a pound, it’s humongous burger,’ Blaxton said. ‘It’s only $9 with fries. You can’t beat it.’

Until recently you could come here, grab a meal, watch the Memphis Tigers or Grizzlies on the big screen and on Fridays listen to live music.

But in October BMI put a stop to all that and sued Skimo’s for having bands play without paying BMI an annual licensing fee for singing songs that BMI owns.

The fee, would have been $900 a year, but now BMI wants much more.

‘It’s $32,000 now,’ Blaxton said, which he doesn’t have. With his savings and retirement almost tapped out, Blaxton says if BMI prevails, he’d have to close Skimo’s.

Other Mid-South businesses that play music and don’t have license agreements with BMI should also be worried. The company is getting aggressive about collecting licensing fees and when they get you in court, they usually wind up on top.”

Source: Music Industry Targets Memphis Small Businesses – FOX13 News, WHBQ FOX 13

Music giant BMI suing New Jersey restaurants


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Green Knoll Grill“Billie Jean is not his lover and the Green Knoll Grill didn’t have permission to play [t]his 1982 hit.

That mistake could cost this restaurant to the tune of several thousands of dollars for each of the four songs that Broadcast Music Inc. claims the venue played one Friday night in May 2014.

The Green Knoll Grill is not alone. Every year, BMI sues about a half-dozen bars and restaurants in New Jersey alleging copyright violations. Last year, the music giant took more than 160 businesses to court, saying they played one of the 8.5 million songs in its repertoire.

The violations could be a result of music played on speakers, DJs spinning records, a band performing covers or patrons screeching out karaoke. The copyright laws are so complex that it takes into account the square footage of a public venue and how many sound speakers and television sets a venue has in order to determine whether a license is needed to just turn on the radio or TV.

While most of these copyright cases are settled out of court, one case involving an Italian restaurant in Linden last year allowed the public to see just how costly such lawsuits can be for businesses. A federal judge in December ruled that Amici III Ristorante on West Elizabeth Avenue would have to pay $24,000, or $6,000 for each of the four songs BMI said the restaurant played last May.

ASCAP says music licensing fees are “one of the many costs of doing business.”

Professional songwriters and composers earn much of their livelihoods by licensing the rights granted to them by copyright law,” the organization, which represents a half-million songwriters and music publishers, says on its website. “ASCAP exists to protect that right by licensing the public performance of our members’ music.*