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Music

Music Licensing Laws Are Even Dumber Than You Think

That mariachi band making its way to your table could be illegal in more ways than one.

This is Perry Margolis: chef, restaurant-owner, musician, conniving criminal.

Just whistle a happy tune? Not unless you want to be slammed with a big fat fine. Music copyright and licensing laws are becoming more stringent and distressingly more arbitrary, so you might want to think twice before you hum a melody while strolling down the street on a nice day--It could make the suits angry. And you won't like them when they're angry.

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The lastest victim in the music industry's War On Everything That Doesn't Score Them Billions Upon Billions Of Dollars Per Year is chef and restaurant-owner Perry Margolis.

Margolis, who works 12-hour days at Harvest Moon in Miami Springs (which he runs with his wife Terri), has been known to step out from the kitchen every once in a while to strum his guitar and treat patrons of his gourmet bistro with some of his favorite oldies. He and Terri also leave the radio on to provide some ambience as their customers eat their meals. For this "privilege," Perry pays $400 per year in licensing fees to Broadcast Music Incorporated, and has done so for more than 10 years. Now, the small business owners are being forced to pay an additional $683 per year or face serious legal action.

The notice sent to Margolis on behalf of the American Society of Composers, Authors, and Publishers (ASCAP) alleges that not all of the songs played in Harvest Moon are covered by BMI's catalog. According to music copyright legislation, playing music in a café or restaurant (be it keeping the radio on in the background or having a mariachi band uncomfortably serenade their way from table to table) is a "public performance," and what Perry and Terri were committing was unlicensed use of material in a public performance space.

While bringing down the hammer of the law on two dandy-seeming folks who are just looking to brighten up their mom-and-pop restaurant might seem like splitting hairs in the worst way, it's apparently something that the music industry takes extremely seriously. Labels have been known to send covert "researchers" into restaurants, bars, and clubs around the country to determine if they're illegally playing music. If they're found to be in violation, they could be slapped with fees ranging from $750 to $30,000 per song, just like the North Carolina restaurant forced to cough up $30,450 to BMI last year for playing four unlicensed tracks.

So how can you tell when you're in the clear and which Tom Petty track might send you drowning in a lifetime of debt? 1999's Fairness in Music Licensing Act exempts litigation under certain guidelines, but calling these guidelines "frivolous" doesn't even begin to describe it. A lot of it hinges on how the establishment might be making money off of the music being played. If a restaurant 3,750 square feet or less plays unlicensed music and does not charge a door fee, they are legally within their rights. But as soon as Perry picks up the guitar in his 400-square-foot, no-seating-room bistro, he could be encroaching on fine-print fee clauses for his "performance". And in some of the less clear-cut cases, ASCAP Senior Vice President of Licensing Vincent Candilora explains that they have been known to discern the value that the music adds to the business (which is what ultimately determines the fees) "by counting how many customers tap their feet."

For the time being, the Margolises have stopped any and all music in their restaurant. “We are a very small business and can’t afford to pay so many fees to play the radio,” Terri admits regretfully, “I guess we’ll just have to entertain customers with our smiles.” But, undoubtedly, it won't be long before another dining establishment/13-year-old's Youtube channel/open mic café/karaoke bar is forced to shutter up due to the capricious rule of King Corporation.

@sashahecht