Live music fees hard to swallow for some in Pittsburgh
Trevett Hooper stands in the empty space that would serve as the bandstand at Legume in Oakland. Mr. Hooper is just one of many restaurant owners who have elected not to hire live musicians to avoid paying steep licensing fees.
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Pittsburgh's restaurant scene is thriving these days, bubbling with passionate chefs, fresh concepts and innovative menus. The city's live music scene is as vibrant as it's ever been.
But live music in a restaurant? Well, merging the two isn't that simple.
To offer live music legally, restaurants in most cases must pay licensing fees that approach or exceed $1,000 a year. Those are in addition to licensing fees they already pay to play recorded music.
Franktuary, a hot dog shop not much bigger than a breadbox located in a Downtown church basement, briefly offered "Tunes on Tuesdays" several years ago -- lunchtime performances by singer-songwriters. Just weeks into the program, co-owner Tim Tobitsch was contacted by Broadcast Music Inc., one of the three performers' rights organizations representing songwriters and copyright holders, informing him that he would owe about $400 in licensing fees to BMI. Fees from the other two organizations likely would have totaled at least $700 more.
"We just stopped having live music," Mr. Tobitsch said. "For how often we were doing that sort of thing, it doesn't make sense from a cost perspective."
Indeed, the law requires that restaurants pay licensing fees for virtually all copyrighted music -- even "Happy Birthday" -- to the songwriters and copyright holders.
That has been true since a landmark 1917 U.S. Supreme Court case, concerning an orchestral performance in a Broadway restaurant. Musical performances in restaurants "give a luxurious pleasure not to be had from eating a silent meal," wrote Justice Oliver Wendell Holmes. "It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere."
Those who wrote the music, or copyrighted it, are therefore entitled to payment anytime the song is performed in a public setting. (George Aiken, the late proprietor of the recently closed Market Square chicken joint, won a related Supreme Court case in 1975 concerning licenses for radio airplay in restaurants.)
For singer-songwriter Brad Yoder of Point Breeze, the law means that every time an episode of the TV show "NUMB3ERS" airs that uses his song "Used" he gets a check -- maybe $6 if it's broadcast in Lithuania or $200 if it airs in Germany.
But it also means that small restaurants or coffee shops where he could be playing his music aren't offering those opportunities.
"I do see both sides," he said. "I think it would be great if the [performers rights organizations, or PROs,] made it possible to present music more easily. They could collect smaller fees from more places and have more music."
Mr. Yoder believes that coffee shops and restaurants would willingly pay something like $200 per year to offer live music. "Instead, [the PROs] tend to bother people, threaten people, essentially be uncaring about the consequence if that means that someone just stops doing music entirely," he said.
At one of the PROs -- the American Society of Composers, Authors and Publishers -- executive vice president Vincent Candilora argues that the fees are more than fair.
"Most of the time, even if we're charging $2 a day, the bartender makes more in tips in the first hour than what we're charging for music," he said.
Music is more integral to restaurant meals than proprietors may realize, he said, mentioning research that shows that slow music can induce diners to linger, while up-tempo music can turn tables faster.
He likens background music in a restaurant to the parsley that chefs might use to adorn a plate. "You don't have a problem paying for parsley, right, because it's a physical product -- somebody watered it, somebody picked it, somebody shipped it to you?" he said. "Hardly anyone eats it -- it's there for the presentation of the food."
Songwriters, he said, have to make a living, too.
"I think the public perception of it is that every songwriter is Bruce Springsteen or Madonna, that they have a hit and they're making all this money," he said. "They're actually the smallest businesspeople. If the guy with the bar thinks he's a small-business owner, try being a songwriter."
While basic copyright law about live music in restaurants hasn't changed since World War I, the Internet has made enforcement dramatically easier.
Enforcement agents from PROs can search online to check live music listings from anywhere in the country to identify bars and restaurants that might need to pay licensing fees.
Anyone playing copyrighted cover music -- live or recorded -- in a public venue for public consumption generally needs to pay music licensing fees, from funeral homes to charity races. Celebrating a birthday at a chain restaurant? Singing waiters will skip "Happy Birthday" and perform their own version of a song that wishes you general happiness on your special day. In the 1990s, ASCAP famously even asked the Girl Scouts to pay license fees to sing campfire songs.
The exceptions are music that is in the public domain (for which the copyright has expired) or music performed by the songwriter or copyright holder, who can essentially grant a direct license.
Those exceptions are currently on display at the Legume restaurant in Oakland, where owner Trevett Hooper is having bands sign a waiver that they will perform only original compositions or public domain songs to perform there.
When Legume opened its new space in Oakland, Mr. Hooper started offering live music in the small bar as a complement to the vibe of the space.
"We're doing creative things in the kitchen, we're serving creative food in a creative way, a lot of the art on the walls is from friends and local artists -- we wanted to have the local music to tie into this community of creative things," he said.
Within two weeks, he said, he received a letter from BMI asking for licensing fees. Had he paid all three PROs, he said, the fees for live music would have totaled about $1,200, in addition to what he's already paying to play recorded music.
He could have paid the money, but "as a matter of principle" he's refusing to do so.
So he's hosting acts such as Zout, a contemporary klezmer-punk band that plays original compositions, for obvious reasons. Tuba player Roger Day, who often performs Latin music with his band Besame, put together a jazz improvisational trio specifically to perform at Legume that he's calling The Uncovering. Franktuary has done something similar on occasion with the songwriter Mr. Yoder.
Mr. Day, of Squirrel Hill, has been doing Internet searches to find songs in the public domain -- he can play Johann Sebastian Bach compositions but not Igor Stravinsky's "The Rite of Spring."
Mr. Day is well aware of the copyright issue. At one time he performed tango music at Squirrel Hill's Tango Cafe, a tiny place that closed earlier this year. After finding out about the licensing fees, the cafe paid the $800 it owed that year. And after that, there was no tango at the Tango Cafe.
Mr. Day has even contacted U.S. Rep. Mike Doyle, D-Forest Hills, with his concerns about the licensing fees for live music. (Mr. Doyle garnered good vibes among certain musicians for defending Pittsburgh-based mash-up artist Girl Talk, who was under legal fire for his sampling methods.)
"To me, music has developed over the years by being passed down from generation to generation," Mr. Day said.
"If you cannot allow musicians to sit in a little bar that has 20 seats because people come down on you like a ton of bricks, that's one cultural activity that's ruled out. This entire tier of culture is removed from our society."
Bars and restaurants that decline to pay licensing fees can be forced to do so through legal action. That's what happened in 2010 to Howlers Coyote Cafe in Bloomfield, which settled with BMI after being served with a federal lawsuit alleging seven counts of copyright infringement.
Legume's Mr. Hooper has problems with the general concept of copyrighted music and with the logistics of the compensation system. He would have to pay for a 120-seat restaurant, for example, even though music is played in the 30-seat bar in a separate room. And because compensation for songwriters is largely based on radio airplay, the independent acts that he would like to feature wouldn't see much money anyway. (The PROs are working to change that with self-reporting systems for independent artists.)
In part because of the difficulty in finding bands that perform entirely original music, Mr. Hooper is likely going to replace his weekly musical acts with variety shows, with acts such as jugglers and comedians.
"That is the silver lining in this," he said. "I think this variety night will be almost more interesting because so many more people will perform here. And that was kind of the whole point of doing music in the first place."
First Published September 16, 2012 12:00 am