9 LI restaurants sued over music payments

Music fans can buy copies of the song "Somebody's Baby," and play it to their hearts' content at no extra charge. But the owner of a restaurant who plays the song for customers had better make sure that somebody else's baby gets a royalty.

Federal copyright law requires that anyone playing or performing copyrighted music in a commercial establishment get a license to do so. The issuer of the license, in turn, pays royalties to whomever has the copyright to the song -- a publisher or, in some cases, the performer.

The premise: The income of an eating and drinking establishment is, presumably, increased by the music, which enhances the dining and drinking experience.

A business ignoring the law might one day hear from one of three organizations that represent the owners of music -- including the oldest and largest, the American Society of Composers, Authors and Publishers. The business that ignores the polite reminders of copyright law requirements might find itself one day in the position of nine Long Island bars and restaurants: facing a lawsuit. The nine were sued in August by the society, commonly known by the acronym ASCAP, in U.S. District Court in Central Islip.

ASCAP represents 500,000 songwriters, composers and music publishers. The suits seek court orders to make the nine Long Island eateries stop playing the music without licenses. They seek damages for ASCAP's members that can range from a few hundred dollars to as high as $150,000, at a judge's discretion.

In each case, the suit specifies four or five songs played or performed in the establishments on certain dates earlier this year. "Somebody's Baby," recorded by Jackson Browne in 1982 and written by Browne and Daniel Kortchmar, allegedly was played on Feb. 7 to entertain the crowd at MacArthur Park, a restaurant in Rockville Centre.

The suits claim ASCAP has been trying for as many as eight years to get the restaurants to buy licenses.

ASCAP executive vice president Vincent Candilora said ASCAP files 100 to 150 such suits annually and fears it might have to file more in the future because fewer consumers are buying music albums, reducing the incomes of songwriters and music publishers. The incomes of performers also are reduced, but, as celebrities, they can make up for the loss by activities such as concerts and product endorsements, he said.

At issue in most cases, Candilora said, are relatively small amounts of money; an establishment with a fire code-rated capacity of 100 customers and featuring live and recorded music would pay $705 a year or $1.93 a day to ASCAP.

But the restaurant owners who agreed to be interviewed noted that they had to pay fees to three licensing entities, not just ASCAP. At Digger's in Riverhead, owner Stephen Wirth estimates his total annual cost could be more than $4,000 with payments to all three. His lawyer, Todd Wengrovsky of Calverton, said, "We respect that songwriters need to receive their royalties. It's just a very difficult position for these small business owners to be thrust into."

The other establishments facing suits are BobbiQue in Patchogue, Elijah Churchill's Public House in Northport, Giacomo Jack's in Amityville, The Homestead in Oyster Bay, Plattduetsche Park Restaurant in Franklin Square, Sergio's in Massapequa and Puglia's of Garden City.

At Sergio's, manager Luciano Fiorvanti said his music is from satellite radio and an occasional karaoke night. "Every restaurant around here has music," he said. "Why are they bothering us?"

At The Homestead, co-owner Mike Ringle estimated it will cost him $15,000 to settle with ASCAP, including legal fees and three years' worth of licensing fees.

He estimates he will pay all three licensing entities about $1,400 a year for licenses. "I understand the licensing and all that," he said, "but I'm not Westbury Music Fair or Nassau Coliseum. I'm a small restaurant."

Most establishments -- hundreds of thousands -- voluntarily purchase the licenses or obey warnings to do so, said Candilora.

Chris Hickey, regional director of the New York State Restaurant Association, said the charges, while not large, are among a seemingly endless number of financial pinpricks for restaurants, including health code compliance and other licenses. "In the restaurant industry so many people are holding out their hands to you," he said. "That's how our members look at it."

Owners of BobbiQue and Giacomo Jack's declined to comment. Calls weren't returned by the owners of MacArthur Park, Plattduetsche Park, Puglia's and Elijah Churchill's.