Playing Fair When the Music Plays

J. Kevin Lamb is fair in saying that restaurants should pay the “appropriate” price for music they use, just as they do for “artwork, wallpaper, flowers or carpeting” (“Music in Restaurants, Bars Is More Than Incidental,” Counterpunch, May 1). The only problem is that he doesn’t carry his analogy far enough. Let’s take a look at how this process really works:

When restaurant owners buy carnations, they shouldn’t be billed for exotic orchids. They shouldn’t get a bill for 200 bunches when they purchase only half that many. They shouldn’t be dunned in 1995 for invoices they paid in 1992. They shouldn’t receive invoices--often running into hundreds of dollars--that do not itemize the flowers being charged for. And they surely should not endure the flower-sellers barging into the restaurant in front of customers and threatening lawsuits for tens of thousands of dollars. Substitute “music” for “flowers” and you will have the true stories of restaurant owners, who have been pushed around too long by the music copyright system.

Although Lamb suggests that the issue is “David vs. David”--the restaurant owner and the songwriter--he is leaving out the real players in the debate. These are the Goliath music-licensing societies, which are virtual monopolies. These powerful groups--primarily ASCAP and BMI--dictate to restaurant owners how much they must pay for the music they play, whether it’s on a radio, a tape deck, a television set--even the “hold” music on telephones.

The societies are in the hot seat because of their often capricious, arbitrary and occasionally even abusive treatment of their “customers,” including restaurant owners. The societies’ agents will demand that the restaurant sign a contract and pay a fee for the music it allegedly plays. The contract is supposedly based on factors such as the number of seats a restaurant has. However, the California Restaurant Assn. has received complaints from restaurants that were charged for seats they didn’t have, for “live performances” they never staged and bills they had long ago paid. Perhaps most galling of all, restaurant owners who question their bills are routinely threatened with lawsuits.

The intransigence of the societies has galvanized the restaurant industry into action. The result is pending legislation aimed at bringing music copyright negotiations out in the open.

The reforms that the restaurant industry wants are eminently reasonable. A bill pending in Congress will establish a third-party arbitration system to resolve disputes and establish fair, reasonable fees. Right now, the music-licensing societies can threaten penalties of up to $20,000 per song for restaurants that the societies claim are in the wrong, and the restaurant has nowhere to turn for arbitration.

The bill will also do a very simple thing: Require the societies to tell the restaurant owner what songs he or she is paying for. Believe it or not, at present the societies hide behind the excuse that their repertoires are so big that they can’t disclose what songs are covered by their contracts. The restaurant industry is willing to pay for what it plays. But the music industry must play fair.