BMI sues Bar Owner for 1.5 Million for Allowing Cover Tunes

1176136_394117467356451_632981190_nLast August, a classic rock band named Alter Ego from Cleveland, Ohio got together to play a show at a bar called 69 Taps-Medina. The set list, like it is for a lot of weekend warriors,  included songs like “Freebird”, “You Really Got Me” and “Mustang Sally”. Songs that are played countless times by cover bands all over the world.

But earlier this week, that bar, the company that used to operate it, and the two guys who controlled that company now face a massive copyright lawsuit in federal court from a music industry Goliath, Broadcast Music, Inc, better known as BMI — the powerful music licensing organization, and the company that holds the copyrights to 10 classic rock songs performed that night, who are alleging “ten claims of willful copyright infringement.”  Read court documents.

Generally, anywhere that music is played — bars, restaurants, clubs, theaters, — must pay a licensing fee to the licensing company or they risk facing federal lawsuits from those massive national organizations. BMI owns the public performance rights to 8.5 million songs and they want to make sure they get their cut from any place that plays any of them, recorded or live, even if it’s just hosting a performance of by small-time cover band made up of regular guys with day jobs getting together for the fun of it (the band is not liable: it’s the sole responsibility of the venue to get the license).

For any of the songs in BMI’s arsenal to be legally played publicly, venues pay the company a fee for access to their catalog, and BMI then distributes most of that to the copyright holders. In fiscal year 2013, for example, BMI collected more than $944 million in licensing fees and distributed $814 million to its member songwriters, composers, and music publishers.

Also joining BMI in the suit against the bar are the music companies that own the actual musical composition copyrights for the songs that were performed, such as Universal, Concord Music Group, EMI Virgin, Fourteenth Hour Music, Springtime Music, Dandelion Music, Jay-Boy, and Cyanide Publishing.

The show in question:

“Cleveland based classic rock cover band” Alter EGO is made up of four suburban guys with corporate jobs who perform every so often at sports bars in Northeast Ohio. The Medina 69 Taps bar hosted them on a Friday night last August. The band is not named in the suit because they are not responsible or liable for anything in it, but a Facebook event listing for the performance and subsequent pictures posted on social media detail it was them.

Below are the 10 songs 69 Taps and its former owners Jon Middendorf and Thomas Manfreda are accused of violating the copyrights of, when they “caused (the songs) to be publicly performed at the Establishment” on August 31, 2013:

“Bad Moon Rising” written by John Fogerty
“Brown Eyed Girl” written by Van Morrison
“Every Rose Has Its Thorn” written by the members of Poison
“Fortunate Son” written by John Fogerty
“Free Bird” written by Allen Collins and Ronnie Van Zant of Lynyrd Skynyrd
“Jessie’s Girl” written by by Rick Springfield
“Mustang Sally” written by Bonny Rice
“Some Kind of Wonderful” written by John Ellison
“Talk Dirty To Me” written by the members of Poison
“You Really Got Me” written by Ray Davies of The Kinks

According to BMI, the Alter Ego performance of these songs — caused them “great and incalculable damage” according to the lawsuit. The specific acts of copyright infringement alleged in the Complaint, as well as the Defendants’ entire course of conduct, have caused and are causing Plaintiffs great and incalculable damage. By continuing to provide unauthorized public performances of works in the BMI Repertoire at the Establishment, Defendants threaten to continue committing copyright infringement. Unless this Court restrains Defendants from committing further acts of copyright infringement, Plaintiffs will suffer irreparable injury for which they have no adequate remedy at law.

They are asking the court to prevent 69 Taps from playing any of the music, to pay money for damages, and for attorney’s fees:

A. Defendants, their agents, servants, employees, and all persons acting under their permission and authority, be enjoined and restrained from infringing, in any manner, the copyrighted musical compositions licensed by BMI…

B. Defendants be ordered to to pay statutory damages…

C. Defendants be ordered to pay costs, including a reasonable attorney’s fee…

D. Plaintiffs have such other and further relief as is just and equitable.

This isn’t the first time BMI has gone after local bars and restaurants for music licensing fees. The company sought six-figure damages from a Pittsburgh-area bar and several others around the country in 2013. And in 2011, a North Carolina bar was ordered to pay $30,000 for illegally playing four songs. Four songs.

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