Are you licensed? Is the joint where you’re doing a show licensed?

The 9th Circuit Court of Appeals issued an opinion last week in a copyright infringement case that is good reminder to anyone involved in live or dj music, whether performing, promoting, or owning or managing venues.

Roscoe’s House of Chicken and Waffles chain of restaurants was sued by Sony, Universal and other music copyright holders for not having an ASCAP license (American Society of Composers, Authors, and Publishers). Roscoe’s Long Beach location had a jazz lounge. ASCAP offered Roscoe’s a license, but Roscoe did not purchase one. So ASCAP sent it investigator there. He heard a live band (Azar Lawrence & the L.A. Legends) playing Coltrane standards (“All or Nothing at All,” “It’s Easy To Remember,” “My Favorite Things,” and “Be-Bop”), as well as a DJ who played some Hiroshima songs.

ASCAP sued Roscoe’s and Roscoe’s lost the case. The district court granted summary judgment to the plaintiffs, awarding $4,500 for each of the 8 infringements ($36,000) and attorneys’ fees of $162,000.

One of the issues on appeal was the individual liability of Herbert Hudson, the corporate officer and director of the company that owned Roscoe’s. The court held that Hudson was properly held liable for vicarious infringement because he had managerial authority over the Long Beach restaurant and lounge. A defendant “exercises control over a direct infringer when he has both a legal right to stop or limit the directly infringing conduct, as well as the practical ability to do so.” “An orchestra or individual instrumentalist or singer who performs a copyrighted musical composition in such a public place without a license is thus clearly an infringer under the Copyright Act. The entrepreneur who sponsors such a public performance for profit is also an infringer—direct or contributory.” (Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 157 (1975).) The court further found that the defendants controlled and derived financial benefit from the infringing performances, and thus were vicariously liable for copyright infringement.

In other words, Mr. Hudson is personally responsible for satisfying the entire $204,000 judgment.

The facts of the case are straightforward and similar to hundreds of other cases publishers bring against small businesses each year for unlicensed public performance. But the fact that Hudson was held personally liable is a good lesson to anyone involved in promoting or presenting live or recorded music. Make sure the joint is licensed.

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