|By Hattie Brown Garrow, The
Virginian-Pilot, Norfolk, Va.McClatchy-Tribune Regional News
June 10, 2009 SUFFOLK - Would you pay almost $14,000 to hear a local band play a cover version of Tom Petty's hit, "I Won't Back Down", Randy White might, and he's not happy about it.
White's problems began Aug. 10, 2007. It was a Friday night, and a crowd came to his club, called Randzz, to drink beer, play pool and maybe listen to the band.
At least one person listened -- closely. The band's playlist, which included hits by Stone Temple Pilots and Bob Seger, got that person's attention.
About 10 months later, several music publishers filed a lawsuit against White, accusing him of copyright infringement. They argued that he was allowing bands to play copyrighted songs without their permission or the proper license. In late May, a federal judge ruled in their favor.
White said he plans to appeal. "I just don't feel I'm responsible for it," he said. "They should be talking to the bands."
The American Society of Composers, Authors and Publishers says otherwise. For an annual fee, ASCAP issues licenses that allow TV networks, radio, restaurants, nightclubs and a slew of other venues the right to play clients' music -- an inventory of about 8-1/2 million songs.
ASCAP has gotten a lot of publicity for its lawsuits against people accused of illegally downloading music, but it also has been policing places such as Randzz Restaurant & Pub.
The 2009 licensing fee, based on seating capacity and other factors, would cost White $1,501.20 for his business.
"This is how songwriters make a living," said Vincent Candilora, ASCAP's senior vice president of licensing. "I think the problem with the public is they don't separate the songwriter from the recording artist. They think that everybody is Bruce Springsteen or Rob Thomas."
For a place that isn't easy to find, Randzz drew ASCAP's attention quickly after it opened in 2006.
Randzz sits on a 55 mile-per-hour stretch of Holland Road, surrounded by farm fields. Motorcycle parts, Harley-Davidson memorabilia, quirky signs and women's lingerie line the walls. Its slogan: "Conveniently located in the middle of nowhere, but worth the ride!" It bills itself as more than a biker bar, with live music most Friday and Saturday nights.
ASCAP has teams assigned to monitor whether businesses are following the public performance aspect of copyright law. About five employees cover Virginia and North Carolina, scouring the Internet for leads and making note of openings and closings, Candilora said.
They will call and send letters to remind business owners that they need a license to play songs in the ASCAP inventory -- whether on compact disc or performed by a live band. Most comply, Candilora said.
Between September 2006 and August 2007, he received at least nine letters regarding the need for a license or artist permission, according to an opinion filed May 22 by U.S. District Judge Mark S. Davis.
White said he ignored the letters and also some phone calls because he thought they were "bogus."
"How does this little place do irreparable damage to some Joe Blow who wrote a song 20 years ago?" he asked.
ASCAP sent an investigator to the bar on that August night in 2007. The investigator cited three instances where ASCAP members' songs were performed live.
The publishers of those songs -- "I Won't Back Down," "Interstate Love Song" and "The Fire Down Below" -- filed the copyright infringement lawsuit almost a year later, after White still refused to buy a license from ASCAP.
"I guess he figured he was the small fish: 'I'm in Suffolk, Virginia. They must have bigger fish to fry,' " Candilora said of White. "It isn't about the size. They gave us no choice."
White said the performances are done by garage bands made up of people who play on weekends.
"I have nothing to do with the playlist for the bands," White said.
It doesn't matter, Candilora said. People go out to eat or drink for the atmosphere, for which music is a critical component. White benefits from having a band play live, he said.
The judge agreed.
"Defendant asserted to ASCAP that the performer has the sole responsibility to obtain permission or a license to perform copyrighted material. This argument is without merit," Davis wrote. "As Defendant was operating an ostensibly profit-making establishment, he had a financial interest in the infringing activity."
Davis forbade White from allowing performances of any music in the ASCAP inventory without authorization and ordered him to pay $10,500 in statutory damages, plus about $3,300 for the music publishers' attorney fees and other costs.
White said he might close down if he loses the appeal.
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Copyright (c) 2009, The Virginian-Pilot, Norfolk, Va.
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