Restaurant and bar licensees that play music in their establishments should take notice of the Ninth Circuit Court of Appeals’ recent decision in Range Road Music, Inc. et al. v. East Coast Foods, Inc. et al., 2012 WL 502510 (9^th Cir. 2012). In the opinion, which can be found here, the Court affirmed a lower court decision finding that East Coast engaged in copyright infringement through its unauthorized use of copyrighted songs in its southern California restaurant, Roscoe’s House of Chicken and Waffles, and the accompanying jazz club, the Sea Bird Jazz Lounge.

The plaintiffs in Range Road were several record companies, each members of the American Society of Composers, Authors, and Publishers (“ASCAP”). The court found that after East Coast opened Roscoe’s and the Sea Bird in 2001, the record companies repeatedly offered East Coast a license to play music owned by ASCAP members. East Coast failed to purchase a license for several years, and in 2008 the record companies independently investigated whether copyright infringement was occurring at Roscoe’s and the Sea Bird Lounge. The investigator discovered that the two establishments were playing CDs that included the record companies’ copyrighted songs and the record companies brought suit for copyright infringement. The court granted their motion for summary judgment, finding eight counts of copyright infringement, and assessing damages of $4,500 for each infringed work. The court also awarded the music companies attorney’s fees and costs in the amount of $162,728.22. The Ninth Circuit Court of Appeals affirmed both the finding of copyright infringement and the attorneys’ fees award, finding that East Coast “could have avoided liability by purchasing a valid license at any point during the seven years in which ASCAP importuned them to do so.”

Under the Copyright Act, copyright owners have the exclusive right, among other things, to perform the copyrighted work publicly. A plaintiff can establish a case for copyright infringement by showing 1) ownership of a valid copyright, and 2) copying of original elements of the copyrighted work, which includes performing a copyrighted work publicly. Statutory damages for copyright infringement range from $750 to $30,000 for each infringement.

Restaurant and bar owners who play recorded music or feature performances of live music should take notice of the Range Road decision and be aware of the basics of the Copyright Act. Letters from ASCAP or similar recording companies should not be ignored.

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