ASCAP (ESCAPE) TO WINE COUNTRY
What should you do when copyright owners come a-knockin’?
Wineries throughout Sonoma and Napa Valley have recently received legal notices from copyright owner groups, threatening legal action for unauthorized live and recorded musical performances in their tasting rooms, etc. which feature songs subject to copyright protection.
The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) are two of the most prominent performing rights societies which collect license royalties for the public performance of musical works in their catalogs. Public performance is defined broadly under the Copyright Act to include both live performances (aka “covers”) and recorded music played on the radio, on television, or online (e.g., via regular Pandora, without a business account). Performing rights societies are well-known for bringing suit when their on-the-ground surveillance reveals that a commercial establishment is allowing public performance to take place without an appropriate license.
Since tasting rooms are commercial establishments which fall outside of the private listening license that typically applies when you purchase music, playing music in a commercial environment (i.e., outside the “normal circle of friends and family”) constitutes an actionable copyright infringement of the public performance right of the copyright owner. Businesses that fail to pay the licensing fees of the copyright owner society (such as ASCAP) will be liable for copyright infringement, potentially including an award of the plaintiff’s attorneys’ fees. See, e.g.,: http://www.ascap.com/press/2015/0527-venues-refuse-to-pay.aspx
If you have not yet been contacted by ASCAP or BMI and know that you are not in compliance but still want to play music in your tasting room, your best strategy would be to subscribe to a provider that will cover licensing obligations with ASCAP and BMI, such as Sirius XM Music for Business or Pandora for Business. (Note that such plans typically do not cover paid entry or dancing.)
Chris Passarelli is Senior IP counsel at Dickenson, Peatman & Fogarty with experience in copyright and trademark issues facing the food & beverage, hospitality and entertainment industries. Contact Chris here.
Parker, Bloggers, and Fair Use
By John Trinidad
Lawyers for The Wine Advocate, the publication made famous by Robert Parker, recently fired off a letter to wine writer Tyler Coleman, demanding that he “immediately remove content on [his blog] www.drvino.com that was copied from eRobertParker.com,” claiming that Coleman’s use of this material “blatantly infringes upon [The Wine Advocate’s] copyright protected content.” Under federal copyright law, Coleman’s use of that material may be protected by the “fair use” doctrine.
The recent kerfuffle between Parker and Coleman arose from a post on Parker’s website criticizing a tasting led by New York Times wine writer Eric Asimov and the San Francisco Chronicle’s Jon Bonné. In follow-up comments also posted to eRobertParker.com, Wine Advocate’s editor, Lisa Perrotti-Brown, added her critique of the tasting and the wines presented. Only paid subscribers can access the article and comment section. Coleman subsequently wrote a blog post quoting from the article and Perrotti-Brown’s comments, defending Asimov and Bonné panel topic, and criticizing the tone of the Wine Advocate post.
Even assuming that Parker’s content on his website is his copyright protected property, Coleman’s use of excerpts from the eRobertParker.com site may not constitute infringement. The federal Copyright Act protects against unauthorized copying of a copyright-protected work, but does not grant the copyright owner exclusive use of that work. Use of another person’s copyright protected work “for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright.” This is often referred to as the “fair use doctrine.” Courts weigh four factors in considering whether an alleged infringing act qualifies as fair use:
1. The purpose and character of the alleged infringing use;
2. The nature of the copyrighted work;
3. The amount of the work used in relation to the overall work; and
4. The effect of the alleged infringing use on the market or value of the copyrighted work.
Congress and federal courts have recognized that “[c]riticism is an important and proper exercise of fair use.” If a copyright holder were allowed to raise infringement claims against any writer that quoted and then criticized its work, copyright law would have a corrosive and chilling effect on free expression. In other words, copyright protection “must yield to the right of persons to engage in full and free public discourse of ideas and issues protect by the First Amendment.” Maxtone-Graham v. Burtchaell, 631 F.Supp. 1432, 1435 (SDNY 1986). Thus, works that criticize or comment deserve protection against copyright infringement claims.
Without walking through all four fair use factors, it appears that Coleman’s use of excerpts from eRobertParker.com for comment and criticism falls squarely within the types of work that Congress intended to protect under the fair use doctrine.