A private investigator walks into a bar… This is not the start of a bad joke, but the crux of a recent California copyright infringement case decided by the Ninth Circuit Court of Appeal. The American Society of Composers, Authors, and Publishers filed the lawsuit against the owners of a popular Long Beach restaurant and jazz lounge after discovering that it was playing copyrighted music without a license.
The Facts of the Case
As reported by Metropolitan News, East Coast Foods, Inc. owns and operates Roscoe’s House of Chicken ‘n Waffles and the adjacent Seabird Jazz Lounge. Shortly after they opened, the ASCAP contacted East Coast to offer it a license to perform music by its members at the establishments. Thereafter, East Coast allegedly failed to respond to repeated requests from ASCAP to stop playing copyrighted music or pay licensing fees.
In 2008, the ASCAP hired an independent investigator, Scott Greene, to investigate whether copyright infringement was occurring at the venue. According to court documents, Greene, who considers himself knowledgeable about every genre of music “except heavy metal and explicit rap,” had previously performed over 300 investigations for ASCAP.
In the resulting copyright litigation, Greene testified that he was able to personally identify several jazz compositions popularly associated with John Coltrane. In several cases, the band leader announced the titles of the songs before playing them. Greene also identified four songs by the jazz-fusion group Hiroshima that played on the venue’s CD player. Although he did not personally recognize the Hiroshima songs, he could identify the titles from the CD jewel case as the songs played.
The lower court found that East Coast had infringed on copyrights held by the ASCAP and awarded $36,000 in damages and $162,000 in costs and attorneys’ fees. East Coast Foods later appealed, arguing that Greene was not a music expert and should not have been allowed to testify.
The Court’s Decision
In its opinion, the Ninth Circuit made it clear that there was no need for expert testimony in order to recognize songs. “On the contrary, identifying music is a reflexive daily process for millions of radio listeners, amateur karaoke singers, and fans of Name That Tune reruns,” the panel wrote.
It further noted that many of Greene’s identifications did not even require him to tax his memory: the live band announced the titles of several of the compositions they covered, and Greene transcribed other titles directly from a CD jewel case.
The Message for Businesses
The ASCAP and other copyright holders fiercely protect their intellectual property rights and the steady stream of revenue licensing those rights provide. Therefore, they are likely to discover when a business is playing copyrighted music without permission. In fact, one of your patrons may even be a private investor.