Elijah Churchill's Slapped With Music Suit

By Arielle Dollinger

adollinger@longislandergroup.com

 

Nine Long Island establishments, including Northport’s Elijah Churchill’s Public House, were served with copyright infringement lawsuits on Monday – an action taken by licensing company American Society of Composers, Authors and Publishers (ASCAP) following what company representatives said were “at least two dozen attempts” to “license and educate” proprietors who allegedly allowed the illegal use of songs by ASCAP artists in their venues.

In order to legally host acts playing the copyrighted music of a musician that ASCAP protects, business owners must pay a fee. The nine businesses in question have not paid that fee despite multiple warnings, ASCAP Executive Vice President of Licensing Vincent Candilora said.

“Songwriters and composers and music publishers join ASCAP, they give us their right of public performance, and our job is to license it to establishments that are using their music,” Candilora said.

Elijah Churchill’s owner Douglas Jaffe could not be reached by press time on Tuesday.

Use of the 8.5 million songs ASCAP represents costs establishments an average of $2 a day, Candilora said – a cost dependent upon how the music is performed. For use of recorded music, establishments must pay $3.36 multiplied by their fire code occupancy limit. If the fire code sets the legal occupancy limit at 100, for example, the establishment would pay $336 per year.

 For live music performances, three nights a week or less, an establishment with a 100-person occupancy limit would pay $482 per year. For use of both recorded and live music, an establishment with a 100-person occupancy limit would pay $223 per year – a rate discounted by 33 percent.

“If music has a value, whether it’s to draw customers into your establishment or whether it’s perhaps to retain those customers… then that’s a value,” Candilora said. “In most establishments, your bartender would make more tips in the first 15 minutes they work than what it would cost you to pay for the right to [play copyrighted music that night].”

Musician Toby Tobias, a South Africa native who now resides in Northport, organizes Wednesday open mic nights at Northport’s Caffe Portofino, an establishment not involved with the ASCAP suits. Those who perform there must only play original music – a condition that came about in recent months after the café received warning that it needed to prohibit performance of copyrighted material.

“I’m very happy that there are original songwriters around, and that we are able to give them a venue to perform their original music,” Tobias said. “I do agree that songwriters, however popular or unpopular they are, should be rewarded for their musical skills and efforts.”

However, Tobias said that he does not agree with the manner in which performers are forbidden to play cover songs.

“I believe that the publishing companies shouldn’t be so stringent in their desire to kind of try to hamper, maybe, the musicians from singer cover songs,” said Tobias. “The Bob Dylans and Bruce Springsteens of the world should be compensated for their efforts, but it should be done in a less militaristic type of way.”

While Tobias said he thinks that Portofino’s weekly open mic nights are “very useful” in the music community, he also noted that the restriction is a deterrent for some.

“It’s turned away many people who would normally otherwise come and cover songs,” he said. “I think that it’s necessary for musicians to be able to express themselves musically, even if a song is not their own.”

But according to Candilora, musicians can express themselves musically through cover songs – if the venue in which they are playing is willing to pay the required fee.

“It’s the same kind of property law,” Candilora said. “When you think about using someone else’s property, you normally get their permission, and you usually pay them something for the use of their property.”

When ASCAP finds out about an establishment that is apparently not complying with copyright law, usually through one of its more than 150 employees who work to identify new establishments that are utilizing copyrighted music, it contacts the business, Candilora said. For most in the bar and restaurant business, he said, copyright law is “a distant thought,” and legal action is a “last resort.”

“If I could settle it with them before going to court, we would be happy to do so,” he said, noting that these cases are normally resolved before they are taken to court. “There is a point where it is not only unfair to our members, whose music is being used without their permission or compensation, but… what about all the other restaurants and bars and places on Long Island [using the music lawfully]?”

If a case is taken to court, a business that loses could end up paying anywhere from $30,000 to $150,000, Candilora said, depending on the judge’s decision. The $150,000 cap is reserved for “willful infringement” cases, in which the judge determines that the defendant was knowingly breaking the law.