The American Society of Composers, Authors, and Publishers (ASCAP) recently filed copyright infringement actions against 21 bars, nightclubs, and restaurants nationwide. ASCAP claims in its press release that the establishments “either publicly performed the copyrighted musical works of ASCAP’s songwriter, composer and music publisher members without obtaining a license from ASCAP to do so, or had signed a license agreement with ASCAP but failed to comply with the license's payment terms.” ASCAP claims that it gives each establishment an opportunity to license music and pay the appropriate fees and that it resorts to legal action only when amicable attempts at resolution to a licensing dispute have failed.
Establishments that engage in copyright infringement are subject to significant liability if found guilty. ASCAP has the option of electing statutory damages of up to $30,000 per song infringed or up to $150,000 per song infringed if the conduct was considered willful. The exact amount of damages awarded is within the court’s discretion. Willful conduct often is defined as actual knowledge of infringement or reckless disregard that conduct constituted infringement. Willful conduct also does not need to be proven directly and may be inferred from the defendant's conduct. Some courts have presumed an establishment acted willfully if it fails to respond to a complaint or court order or if it fails to appear in court.
Alternatively, ASCAP may elect actual damages, normally calculated with respect to its lost profits. The defendant also may be assessed ASCAP’s attorney’s fees in addition to paying its own fees.
Music copyright infringement disputes with ASCAP, BMI, and other music copyright owners and royalty clearinghouses can become very expensive for bars, nightclubs, restaurants, and other establishments. If you are negotiating a license agreement with ASCAP, BMI, or a similar entity, or if you already are in a licensing dispute with the entity, you should contact counsel experienced with copyright law and license agreements.