[Update, 3/18: Saleh is vowing to carry on with open mic night, but only feature original material to avoid music rights enforcers.]
According to a tip from Hoodline reader Joe M., Cafe International (508 Haight St.) was recently threatened with a lawsuit by music rights management company BMI after a performer at an open mic night sang “Happy Birthday” to a friend.
This was far from an isolated incident, as it turns out. “They’ve been bugging us and bugging us, it’s become a nightmare,” Cafe International owner Zahra Saleh told Hoodline.
And BMI isn't the only group that has threatened the cafe, according to Saleh. "Performing rights organization” SESAC has also come after Cafe International in the past.
Saleh said that for the past 20 years, representatives of the two organizations have frequently entered the cafe to give her notices of copyright violations, threaten legal action, and demand she pay an annual fee to continue having music in her cafe, on at least one occasion even secretly recording an open mic performance to use as evidence despite the strict “original music only” rule Saleh tries to enforce.
Even when she has played traditional music from her native Eritrea, Saleh added, BMI reps have tried to collect royalties, saying they intend to pass them along to the musicians.
“It was my uncle’s music, he is a famous musician there,” Saleh said. “He says he never received any money from them.”
According to Section 110(5) of the U.S. Copyright Act, a performance or broadcast of a musical work in a food service establishment is not considered a copyright infringement if the space is smaller than 3,750 square feet. If the space is larger than that, the music usage is still not considered a copyright infringement if the performance is transmitted using no more than four loudspeakers. So even if a performer at Cafe International sang a copyrighted work like "Happy Birthday To You" (which yes, is copyrighted by Warner/Chappell music, although that's being challenged), it's doubtful the cafe is large enough or using enough amplification to violate the law.
Regardless, Saleh has decided to shut down the open mic nights, and no longer even plays CDs in the cafe. Instead she has opted for a satellite radio service to provide musical ambience, even though she has never turned a profit from having music in the cafe.
“We’re not making money with this stuff,” she says. “It’s just for young people to have fun, instead of being on the streets.”
Saleh tells Hoodline that Cafe International is not the only local business that has been targeted by BMI and SESAC. Calls to both BMI and SESAC for comment were not returned.
BMI's vice president for corporate communications, Liz Fischer, reached out to provide Hoodline with the following comment, and also claimed to have no record of BMI having contacted Cafe International in "well over a year." We're continuing to investigate and will have more soon. Here is the statement from BMI in full:
"BMI advocates on behalf of songwriters and composers who are often themselves among the smallest of business owners and rely on their royalty payments as their main source of income. They are entitled to fair compensation for their work. We never want situations like this to escalate, and our goal is to work with various businesses to educate them on the importance of music licensing, which is both required by law and can also add tremendous value to their establishment."
According to BMI's website, the company "serves as an advocate for the value of music, representing more than 8.5 million musical works created and owned by more than 650,000 songwriters, composers and music publishers."
And according to its site, "SESAC currently licenses the public performances of more than 400,000 songs on behalf of its 30,000 affiliated songwriters, composers and music publishers."
We’re looking into this issue more extensively. Stay tuned.
Update: a tipster has written in to help clarify the U.S. Copyright Act for us. The clause cited above, 110(5), applies to restaurants that broadcast songs via TV or radio, but does not specifically apply to live performances. However, an earlier clause, 110(4), states that live performances of copyrighted music are allowed if those performances are "without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance." Whether Saleh's claim that the purpose of the open mic nights is not to make money but "just for young people to have fun" is enough to satisfy this clause is open to interpretation.