HBO Wins Round in Dispute With BMI : Entertainment: A federal judge refuses to issue an injunction that would have prevented the cable movie channel from showing some films.

A federal court on Thursday refused to bar Home Box Office Inc. from airing shows containing songs managed by Broadcast Music Inc. and handed the composers’ group a setback in its bid to collect millions of dollars in additional music royalty fees from the cable industry.

U.S. District Judge John Sprizzo in New York refused to issue an injunction that would have prevented HBO from showing about 80 movies on its September schedule that contain BMI songs, including compositions such as “Batman.” HBO’s license to broadcast BMI songs expired Jan. 1, but the pay-television service has continued to air such films without paying a fee.

The parties are scheduled to return to court Oct. 5 to begin a full hearing on the merits of BMI’s lawsuit to collect higher licensing fees from HBO. Meanwhile, HBO will have to pay an interim fee greater than what it had been paying under its old contract.

Thursday’s ruling is expected to put more pressure on the parties to settle their differences. If BMI wins its suit--and other songwriter groups prevail in similar actions against the cable programmers and operators--the cable industry as a whole will have to pay more for the music it uses in their programs, a cost that most likely would be passed on to consumers.

“Antitrust litigation is long and drawn out and costly,” said Edward Chapin, general counsel of BMI. “To the extent there is some middle ground . . . you’d like to get it over with.”

Since 1985, a composer’s copyright has included a “performance right” that entitles him to a fee when his work is performed. Organizations such as BMI and the American Society of Composers, Authors and Publishers were created to monitor establishments that play music, charging licensing fees for the use of members’ music.

BMI filed its lawsuit against HBO earlier this year after the cable industry refused to pay higher licensing fees. In addition to raising basic rates, BMI sought to collect royalties from local cable system operators was well as from cable programmers such as HBO.

Neither the cable industry nor BMI has estimated how much money is at stake in their dispute, but BMI collected $194 million in performance rights and royalties for the year ended June 30, 1989, according to the organization’s annual report. BMI spokesmen have said over-the-air TV and radio account for about 70% of those revenues but that royalties from cable TV are the fastest-growing revenue source. Before the dispute, HBO paid about 27 cents per subscriber for use of licensed music.

The cable industry--which is embroiled in several similar lawsuits with BMI and the nation’s other major composers’ group, ASCAP--argues that any plan to collect music royalty fees from both cable networks such as HBO and from local cable operators would violate antitrust and copyright laws.

Although no cable industry spokesman could be reached for comment late Thursday, the National Cable Television Assn., in a suit filed in U.S. District Court in Washington, contends that BMI’s proposed two-tiered licensing system amounts to “unlawful price fixing” because it would double BMI’s revenue stream from cable television.

In recent years, with the expanded use of music in cable TV, shopping malls and even aerobics studios, collecting performance rights has become one of the most lucrative parts of the $6.5-billion recording industry, experts say.

BMI, which licenses about 1.5 million songs, represents about 67,000 songwriters and 38,000 music publishers.

HBO, a unit of Time Warner Inc., is the nation’s largest pay-television service with more than 23 million subscribers.