JAM: October/November 2002 Issue: A Majestic Standoff

A Majestic Standoff
KC Jazz Mainstay Is Sued By Music Biz Monolith

Talk about David and Goliath.
ASCAP -- The American Society of Composers, Authors and Publishers -- has filed suit against the Majestic Steakhouse for copyright infringement.

And it's not a bolt out of the blue.

According to Majestic owner/manager Doug Barnard, storm clouds have been gathering since 1993, and the first clap of legal thunder was finally heard last summer.

In Barnard's own words:

"ASCAP has been harassing us to sign a licensing agreement for years. In '93 they threatened us with a lawsuit, and at the time, being young and also fearful of something like that, I signed (an agreement). I mean, they came in and said, 'We need your signature on this piece of paper today or we're gonna put you out of business.' Well, afterwards, I checked with attorneys and some people I know in the business, and I decided we didn't need to do that. So, I called them back and said: 'no.' They've been harassing us ever since. And finally, this year, in July, they filed a suit for copyright infringement."

How has ASCAP put together its case?

"All we have is their report, but they supposedly sent an agent to Kansas City on February 3, 2001 who came in here and wrote out a list of songs that were allegedly played that night. Out of 18 songs -- five of which they couldn't even identify, which throws their expert agent into doubt -- three songs were identified as representing copyright infringement on our part because, according to ASCAP, we are supposed to be paying licensing fees for public performances of copyrighted music. They offered to let us settle by paying all back licensing fees -- plus a penalty -- and then we could all move forward. Or, they were going to file a suit in federal court. After discussing this with our attorney, we said (to ASCAP): 'Go for it.'"

What are the three songs identified by ASCAP?

"'Unforgettable,' 'Stormy Weather,' and 'What a Wonderful World.' And what's interesting about that is that the band members in question -- Bram Wijnands, Hal Melia and Tommy Ruskin -- say that two of those songs aren't even on their playlist! But we're claiming that there's no copyright infringement in any case because the music played at the Majestic is interpretive and played on chord changes that can't be copyrighted. We're also saying that this is more of just a case of harassment on ASCAP's part."
Where do things stand now?

"The suit has been filed in the 8th District Federal Court here in Kansas City. We've filed our response -- that there has been no copyright infringement -- and I guess it goes to discovery next. If there ever is a trial, it probably wouldn't take place for another two or three years."

JAM also spoke with representatives from ASCAP who had a very different take on the matter. First ASCAP spokesperson Laurie Hughes.

"We represent songwriters and music publishers. Under the copyright law, whenever copyrighted music is performed in public -- like at a bar, in a hotel, in a nightclub, on the radio -- it's the property of the copyright owner. And if you want to perform it you have to have their permission. The way this is typically done is that most songwriters belong to one of three organizations in the United States, ASCAP being one. We represent the works of our members and in turn issue licenses to places that perform music, like bars and restaurants. They pay an annual fee, which gives them the right to use everything we represent, which is about 8 million copyrighted works. You can also get permission directly from the copyright owner. But in any event, if you are publicly performing copyrighted music, you need to have the permission of the copyright owner.

"Mr. Barnard has continued to present public performances of our members' music in his establishment without authorization. So, we have continued to contact him to remind him of his obligation. It's not harassment that we have reminded him from time to time that: 'You really need a license. What questions do you have that we might be able to answer to resolve this? Can we talk to your attorney?' That sort of thing. And based on everything that I've seen, it's been mostly by telephone and mail."

Regarding Barnard's charge of harassment, ASCAP spokesperson Andrew Schaeffer also sees things differently.

"Often in these cases, people have the idea that we are 'strong-arming' them. That's not correct. We explain the copyright law and we tell people that they need to comply with the copyright law. Unfortunately, sometimes we have to do this repeatedly."

Ms. Hughes:
"And we do not threaten to put people out of business. Quite frankly, I don't know that we could (put people out of business)."

Mr. Schaeffer:
"I'd also just like to add that what (Barnard) is calling harassment is (based on) his opinion of the law, which we think is incorrect. We are pursuing our rights under the law, and he is calling that harassment. I think that is indicative of what he considers harassment, but (it is) what I think a reasonable person would call protecting our members' rights under the law."

Regarding the aforementioned question of the ASCAP agent's competence, or lack thereof, in February 2001, Mr. Schaeffer responds.

"If it's a jazz club, and the musicians are playing songs that the person is not familiar with, that does not in any way throw doubt on his ability to identify songs he is familiar with."

And about the claim that two of the three songs named are not even on the performing band's playlist, Ms. Hughes:

"I understand that (Barnard) has said that. But our investigator who was there is willing to swear to (hearing the three songs) in court. And by the way, the investigator would have no reason to make anything up, because he doesn't know what songs are in the ASCAP repertoire."

At the core of this dispute, however, is whether or not copyright infringement itself has actually taken place. Barnard claims that because the music is "interpretive," no infringement has occurred. Mr. Schaeffer feels otherwise.

"The copyright law explicitly says that, as long as the songs are recognizable, that is the test for liability. There are cases on this exact issue. Even though people have their own interpretation of the song, or are jazz musicians who embellish the song, the test under the law is that it is still copyright infringement if it is recognizable."

In our initial interview, Doug Barnard made another point for which we wanted ASCAP's response. First Barnard:
"We're not recording these songs and selling them for profit, which is what the copyright laws are intended to protect. An interpretive public performance that is never recorded, in our opinion, falls under the 'fair use' clause."

Ms. Hughes:
"That is totally incorrect. There are separate exclusive rights under the copyright law. (And) the right to record and sell music is a totally separate right from the right to publicly perform the same music. 'Fair use' applies to certain limited situations but not this. For example, it could apply in a news commentary, or if you used a paragraph (from another source) in a text book, or something like that. But to simply take the work, adapt it however you want, and perform it publicly, that clearly is not 'fair use.'"

That said, Doug Barnard is still seeing a bigger picture.

"We just haven't done anything to harm these people... If anything we should be charging them a promotional fee! I can see how someone might hear 'Stormy Weather' at the Majestic and then go out and buy the recording by Lena Horne!"

Ms. Hughes:
"We thank him very much for the opportunity, but that's just not the way this works. Everybody wants to 'promote' our music, but nobody wants to pay for the use of it."

Mr. Schaeffer:
"Also, it's clear that (Barnard) uses music to promote his club. In fact, that music is being presented is one of the reasons -- probably the main reason -- people go to his club. So he's using the copyright owner's music to make a profit."

Doug Barnard:
"I guess one way to resolve this is for us to stop presenting live jazz at the Majestic. I'd sure hate to see it come to that."

Ms. Hughes:
"Well, they have several choices. They can do the right thing and what is required under the law, which is: obtain permission, either through us or from every one of the copyright owners whose music they use. Or, another option would be to stop the use of copyrighted music."

Of course, obtaining permission would also involve some kind of settlement between ASCAP and the Majestic. And about that method of resolution, Doug Barnard is very clear.

"We are not interested in a settlement."

-- Mike Metheny






	Search our site:		A Majestic Standoff KC Jazz Mainstay Is Sued By Music Biz Monolith Talk about David and Goliath. ASCAP -- The American Society of Composers, Authors and Publishers -- has filed suit against the Majestic Steakhouse for copyright infringement. And it's not a bolt out of the blue. According to Majestic owner/manager Doug Barnard, storm clouds have been gathering since 1993, and the first clap of legal thunder was finally heard last summer. In Barnard's own words: "ASCAP has been harassing us to sign a licensing agreement for years. In '93 they threatened us with a lawsuit, and at the time, being young and also fearful of something like that, I signed (an agreement). I mean, they came in and said, 'We need your signature on this piece of paper today or we're gonna put you out of business.' Well, afterwards, I checked with attorneys and some people I know in the business, and I decided we didn't need to do that. So, I called them back and said: 'no.' They've been harassing us ever since. And finally, this year, in July, they filed a suit for copyright infringement." How has ASCAP put together its case? "All we have is their report, but they supposedly sent an agent to Kansas City on February 3, 2001 who came in here and wrote out a list of songs that were allegedly played that night. Out of 18 songs -- five of which they couldn't even identify, which throws their expert agent into doubt -- three songs were identified as representing copyright infringement on our part because, according to ASCAP, we are supposed to be paying licensing fees for public performances of copyrighted music. They offered to let us settle by paying all back licensing fees -- plus a penalty -- and then we could all move forward. Or, they were going to file a suit in federal court. After discussing this with our attorney, we said (to ASCAP): 'Go for it.'" What are the three songs identified by ASCAP? "'Unforgettable,' 'Stormy Weather,' and 'What a Wonderful World.' And what's interesting about that is that the band members in question -- Bram Wijnands, Hal Melia and Tommy Ruskin -- say that two of those songs aren't even on their playlist! But we're claiming that there's no copyright infringement in any case because the music played at the Majestic is interpretive and played on chord changes that can't be copyrighted. We're also saying that this is more of just a case of harassment on ASCAP's part." Where do things stand now? "The suit has been filed in the 8th District Federal Court here in Kansas City. We've filed our response -- that there has been no copyright infringement -- and I guess it goes to discovery next. If there ever is a trial, it probably wouldn't take place for another two or three years." JAM also spoke with representatives from ASCAP who had a very different take on the matter. First ASCAP spokesperson Laurie Hughes. "We represent songwriters and music publishers. Under the copyright law, whenever copyrighted music is performed in public -- like at a bar, in a hotel, in a nightclub, on the radio -- it's the property of the copyright owner. And if you want to perform it you have to have their permission. The way this is typically done is that most songwriters belong to one of three organizations in the United States, ASCAP being one. We represent the works of our members and in turn issue licenses to places that perform music, like bars and restaurants. They pay an annual fee, which gives them the right to use everything we represent, which is about 8 million copyrighted works. You can also get permission directly from the copyright owner. But in any event, if you are publicly performing copyrighted music, you need to have the permission of the copyright owner. "Mr. Barnard has continued to present public performances of our members' music in his establishment without authorization. So, we have continued to contact him to remind him of his obligation. It's not harassment that we have reminded him from time to time that: 'You really need a license. What questions do you have that we might be able to answer to resolve this? Can we talk to your attorney?' That sort of thing. And based on everything that I've seen, it's been mostly by telephone and mail." Regarding Barnard's charge of harassment, ASCAP spokesperson Andrew Schaeffer also sees things differently. "Often in these cases, people have the idea that we are 'strong-arming' them. That's not correct. We explain the copyright law and we tell people that they need to comply with the copyright law. Unfortunately, sometimes we have to do this repeatedly." Ms. Hughes: "And we do not threaten to put people out of business. Quite frankly, I don't know that we could (put people out of business)." Mr. Schaeffer: "I'd also just like to add that what (Barnard) is calling harassment is (based on) his opinion of the law, which we think is incorrect. We are pursuing our rights under the law, and he is calling that harassment. I think that is indicative of what he considers harassment, but (it is) what I think a reasonable person would call protecting our members' rights under the law." Regarding the aforementioned question of the ASCAP agent's competence, or lack thereof, in February 2001, Mr. Schaeffer responds. "If it's a jazz club, and the musicians are playing songs that the person is not familiar with, that does not in any way throw doubt on his ability to identify songs he is familiar with." And about the claim that two of the three songs named are not even on the performing band's playlist, Ms. Hughes: "I understand that (Barnard) has said that. But our investigator who was there is willing to swear to (hearing the three songs) in court. And by the way, the investigator would have no reason to make anything up, because he doesn't know what songs are in the ASCAP repertoire." At the core of this dispute, however, is whether or not copyright infringement itself has actually taken place. Barnard claims that because the music is "interpretive," no infringement has occurred. Mr. Schaeffer feels otherwise. "The copyright law explicitly says that, as long as the songs are recognizable, that is the test for liability. There are cases on this exact issue. Even though people have their own interpretation of the song, or are jazz musicians who embellish the song, the test under the law is that it is still copyright infringement if it is recognizable." In our initial interview, Doug Barnard made another point for which we wanted ASCAP's response. First Barnard: "We're not recording these songs and selling them for profit, which is what the copyright laws are intended to protect. An interpretive public performance that is never recorded, in our opinion, falls under the 'fair use' clause." Ms. Hughes: "That is totally incorrect. There are separate exclusive rights under the copyright law. (And) the right to record and sell music is a totally separate right from the right to publicly perform the same music. 'Fair use' applies to certain limited situations but not this. For example, it could apply in a news commentary, or if you used a paragraph (from another source) in a text book, or something like that. But to simply take the work, adapt it however you want, and perform it publicly, that clearly is not 'fair use.'" That said, Doug Barnard is still seeing a bigger picture. "We just haven't done anything to harm these people... If anything we should be charging them a promotional fee! I can see how someone might hear 'Stormy Weather' at the Majestic and then go out and buy the recording by Lena Horne!" Ms. Hughes: "We thank him very much for the opportunity, but that's just not the way this works. Everybody wants to 'promote' our music, but nobody wants to pay for the use of it." Mr. Schaeffer: "Also, it's clear that (Barnard) uses music to promote his club. In fact, that music is being presented is one of the reasons -- probably the main reason -- people go to his club. So he's using the copyright owner's music to make a profit." Doug Barnard: "I guess one way to resolve this is for us to stop presenting live jazz at the Majestic. I'd sure hate to see it come to that." Ms. Hughes: "Well, they have several choices. They can do the right thing and what is required under the law, which is: obtain permission, either through us or from every one of the copyright owners whose music they use. Or, another option would be to stop the use of copyrighted music." Of course, obtaining permission would also involve some kind of settlement between ASCAP and the Majestic. And about that method of resolution, Doug Barnard is very clear. "We are not interested in a settlement." -- Mike Metheny RETURN TO OCTOBER/NOVEMBER 2002 MAIN INDEX © Kansas City Jazz Ambassadors 1996-2002. All rights reserved.