Cape Girardeau coffee shop cuts recorded music over licensing fee request

If it's the lyrics of legend Bob Dylan or the melodies of pop-star Katy Perry you love to pair with your tall vanilla latte, you'll have to make sure you're the only one who can hear it when you're kicking back at Broadway Books & Roasting Co. in Cape Girardeau.

After a performance rights organization called this summer with intentions to collect a licensing fee, the coffee shop's owner, Janet Woods-Jackson, chose to no longer play recorded music. And when her open mic crowd comes in on Friday nights she strictly enforces a "no cover song" policy.

U.S. copyright law requires bars, restaurants, schools and larger venues like stadiums and arenas -- basically anywhere that plays music -- have a performance license.

"I didn't want to do that. I think that's mob tactics," Woods-Jackson said. "We're not making a profit from open mic, we don't charge and it's just people hanging out enjoying music."

The organization, SESAC, one of the three largest songwriter membership associations in the United States, told Woods-Jackson she was breaking the law by playing recorded music and could face thousands of dollars in fines per song if she continued. She considered canceling the open mic night for good but knew her crowds, mostly Southeast Missouri State University students, enjoy the opportunity to express themselves.

Kara Smollen and Sean Smith try to plan their open mic set Friday, Novemebr 5, 2010 at Broadway Books and Roasting Co. in Cape Girardeau. The duo decided to try something new and combine their acts an hour before they were scheduled to perform. Smith who improvs to live samples from cuts of his electronic music project "Midnight in Moscow" said "Most things I've done here I've never done before". Smith said of her violin skills, "I'm not the best at it, but I have a great love of the instrument and music". (Laura Simon)

So it wasn't a surprise when her Friday night crowd dropped from more than 100, with around 25 artists, to 20 people, including about five musicians or poets.

Matt Antill, a regular performer at the shop, said the drive to collect licensing fees is only hurting the music industry and certainly hurting the local music scene.

"They should encourage covers. You might see an increase in sales for an artist or a songwriter," Antill said. "Live music is not taking money away from the industry."

However, Vincent Candilora, senior vice president for licensing at ASCAP in Nashville, Tenn., said songwriters deserve compensation for their hard work and talent. The law, Candilora said, doesn't discriminate between large venues or businesses and small ones. Songwriters make up most of ASCAP's members.

"Nobody wants a Don Schlitz T-shirt," said Candilora, referring to the musician who wrote "The Gambler," first sung by Kenny Rogers. "But he should get royalties for his song."

Business owners should also recognize the positive effect playing music -- live or on a jukebox -- has on their revenue. Candilora said ASCAP's licensing teams travel the country to educate venues on the value of music to businesses and explain the obligation to pay a fee for playing popular music. Some venues refuse to pay the fee, calling it unfair, but the majority of places pay the annual costs.

"A restaurant recognizes that parsley has a benefit; they use it to enhance the presentation of the food," Candilora said. "... It's worth it to pay the fee. It's a good business decision. It enhances business."

Will Rhymer, owner of Rhymer's on the Plaza, said he pays into a performance licensing organization through his use of an Internet jukebox. Rhymer's also hosts open mic night every Wednesday and a variety of bands several nights a week. Rhymer said he's not fond of the annual fee but understands the process behind it.

"People have devoted their time to making the music, so they would be entitled to any type of royalty," he said.

ASCAP agents consider several factors when assessing performance license fees. It is calculated based on the number of performances each week and how many perform, but mostly on the size and seating capacity of the establishment. Smaller venues like Broadway Books & Roasting would likely pay anywhere from $320 to $400 annually, according to Candilora.

"It's a reasonable fee for the benefits of using someone else's property," Candilora said. "It's often less than a dollar a day, and it's deliberately calculated that way."

LeaAnne Casteel, owner of Hunter Valley Winery, which hosted live acts all summer, said ASCAP's fee just invites additional fees from BMI and SESAC. As a small-business owner, she said, she couldn't afford three performance licensing fees that would likely total more than $1,000. Still, she never received actual figures from ASCAP.

An agent called her about a year ago, Casteel said, asking the winery to pay dues to play live music. She didn't disregard the request immediately, asking the agent to send her paperwork to look over with her lawyer.

"I was just looking for how they'd justify making us pay. They never sent me the paperwork," Casteel said.

Casteel may not need a license anyhow, though, as musicians who play on her patio or in a seating area above her tasting room play original songs. Coincidentally, Casteel said, many of them are members of ASCAP.

"The ones who've come out here and sang their own originals have never seen one dime from ASCAP or BMI," Casteel said.

It's not often the licensing agencies take the venues to court. Of the thousands of places that go into business annually, Candilora said ASCAP files 250 to 300 infringement lawsuits each year. It's almost a "last resort" that the agency files a lawsuit, he said.

"Normally, we are engaged in trying to educate them and license them. It's probably over a year before we start to look at having to file an infringement case," he said.

ehevern@semissourian.com

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