End of the song

Coffee shop stops live music after copyright licensing debate

View File photoMarcia and Mike Hopper, from left, owners of Mocha Joe, 117 S. Water St., and general manager Edison Graff, had started a live music series featuring local songwriters but stopped after three organizations told the cofee shop it would have to pay licensing fees in case the musicians performed copyrighted works written by others. Advertisement

For Henderson business owner Mike Hopper, his coffee shop, Mocha Joe, was the perfect environment to let local artists showcase their original music. At least that was the plan until the American Society of Composers, Authors and Publishers said otherwise.

Hopper and his wife opened Mocha Joe in August 2009 with the hope of bringing a sense of culture to downtown Henderson at 117 S. Water St.

"We had to get the business model down first," Hopper said. "By October, we had the model down and decided to add to it. We thought, 'What a perfect venue for bands.' We tapped into local musicians that were unsigned, which is perfect because we couldn't pay them. There was no business incentive. It was not really a money-gaining venture. It did promote us as a more well-rounded coffee shop."

However, after Mocha Joe started promoting bands through the Internet, Hopper was approached by representatives of ASCAP, Broadcast Music Inc. and the Society of European Stage Authors and Composers.

They told Hopper that he must pay fees to protect against copyright infringement.

"The purpose is really genuine," Hopper said. "If I wrote a song and it is performed and used to make money, that is my right as a songwriter to get paid for that. That floated over to cover songs. If a band plays a cover song, they should have dues paid. Then it slowly crept out to public performance."

Vincent Candilora, ASCAP's vice president of licensing, said a public performance takes place when there is a substantial amount of people outside a normal sphere of influence, such as friends, family or acquaintances, listening to copyrighted music.

"This is if they are playing anything from Jay-Z to Coldplay to anything in between," Candilora said. "People have an obligation under the law to pay for using someone else's property."

However, Hopper said it was just a misunderstanding between him and the organizations. He then called to explain that the unsigned bands were playing 100 percent original songs.

"I am 100 percent in compliance," Hopper said. "I'm not charging cover at the door. I'm not paying the bands, and they are just playing songs they wrote. They essentially said to me, 'We don't care. We have this low-end licensing fee you must have because there is a chance your band might play a cover song.' "

Hopper continued to get phone calls, letters and invoices from the three groups.

The first letter from ASCAP, which Hopper received Nov. 13, included a general license agreement for Hopper to sign verifying that he was playing ASCAP-licensed music and agreeing to pay the fees to continue to play the music. It stated: "Simply sign and return the enclosed agreement with the appropriate payment as indicated on the invoice. ... I am sure that you will find that our license is the easiest and most economical way to obtain permission to perform any of the millions of songs in our repertory."

"(In order to assess the amount billed) we look at the fire code," Candilora said. "We determine the capacity of the place. Let's say the place holds 60 people. Then we look at how the music is performed and how many nights they are performing."

ASCAP then takes the rate and multiplies it by the number of people. According to the invoice, Mocha Joe, which was determined to have a capacity of 60 people, was charged a weekly fee of $4.46 for playing three nights or less plus $2.07 for recording the music.

Hopper said it didn't make sense because the bands weren't playing copyrighted music.

"(The letters) basically said, 'You are playing live music and are responsible for paying your dues. Here is your bill,' " Hopper said. "They muscled me into it."

Hopper said it felt like extortion because the groups are making people pay money on the chance that someone might play cover songs that are copyrighted.

Candilora said ASCAP usually will send a non-ASCAP representative to determine whether the establishment is playing copyrighted songs. The business then is billed accordingly. He also said that as far as he knew, Mocha Joe still was under investigation and it had not been determined whether it had played copyrighted music.

However, the invoice Hopper received Nov. 13 requested two amounts: the annual rate for $391.80, which referred to music performed at Mocha Joe before Nov. 1, 2009, and the amount due for $666.06, which is a discounted rate if Mocha Joe pays in advance for two years. The billing period is for Nov. 1, 2009, through Oct. 31, 2011. SESAC sent a similar invoices.

Hopper said it isn't about the money, even though the establishment isn't financially able to pay the fees, but more the principle of paying for something he isn't doing.

He even tried negotiating with the agencies to find a common ground.

"The establishment has to carry a public performance license," Hopper said. "I said to them, 'What if I had a contract with the bands saying if you guys play a cover track, you will be responsible for paying dues?' They said that was not possible."

Looking at potentially paying a total of $1,800 in annual fees to the three agencies and the possibility that he would be shut down permanently, Hopper discontinued music at Mocha Joe.

He said a local ASCAP representative came into the coffee shop to make sure that he had taken down the music equipment and all the fliers from the windows.

This wasn't the first time that the ASCAP had confronted establishments about public performance licenses. Hopper said he combed through Internet stories and blogs about the same thing happening around the country.

"Where do you draw the line?" Hopper asked. "Eventually, you're going to be driving down the street and have your radio on at a stop sign and it is a public performance. Are you going to license me there, too?"

Contact Henderson and Anthem View reporter Michael Lyle at mlyle@viewnews.com or 387-5201.