The music police are patrolling Sisters

The next time you're at a pizza parlor singing "Happy Birthday" to a sugar-stimulated gang of pre-schoolers, reveling in the whirl and the rush of afternoon festivities, don't be surprised to see (BMI Broadcast Music, Inc.) music agents spring from behind a Skee-Ball game to slap a hefty fine on the owner for copyright infringement.

Sounds shocking, but following the strict letter of the law, the song "Happy Birthday" is a legal creative property and cannot be sung in a public place without permission or a license.

The Depot Café (formerly Depot Deli) owners, Chris and Pam Wavrin, wanted to try to boost revenue by offering a pleasant evening of folk music once a week to promote their new dinner menu. Little did they know it would incur the wrath of BMI agents demanding Wavin purchase a $360 yearly license to play live music.

"They called and told us we need this license," Chris Wavrin said. We said we really didn't need one, that it doesn't apply to us, since we only occasionally have any music. The artists we have in play mostly their own material, not cover tunes, and that we'd make sure that only original music was performed. We're just a tiny restaurant. They told us we still needed it because a song considered a 'derivative work' might be played."

Wavrin said he received a copyright infringement notification in the mail along with a "Live Music" license application with a $360 fee. It claimed that whatever music you perform to benefit your business, its public performance requires a license.

"They called again," he said. "I told them no. They don't listen. They keep calling, over and over. It got to the point where I was just hanging up on the guy. This has gone on for months. It's harassment. They're still calling."

Other restaurants in town have reported being contacted in recent weeks by representatives of performing rights organizations like BMI.

BMI is a non-profit entity, and stands for Broadcast Music, Incorporated. They were formed in 1938 as a performers rights organization, to issue licenses to users of music, protect the rights of copywritten music and monitor and enforce violations of those laws. They, along with ASCAP (American Society of composers, Authers and Publishers) and SESAC (originally, the Society of European Stage Authors and Composers) represent "The Big Three" governing bodies and regulatory agencies set up to collect fees and distribute royalties to their member songwriters, music composers and producers.

The Nugget spoke with Jerry Bailey, BMI's senior director of media relations, from their headquarters in Memphis, Tennessee. Bailey says their primary goal is to properly license establishments who are playing the music of their member songwriters and composers, not to badger and intimidate small business owners or hinder the growth of local musicians.

"Everybody wants free music, and they're baffled to learn that it's not free," he said. "We are bound by copyright law determined by Congress, and ask other people to do the same.

"It seems if a company's primary business and income is derived from the playing of live music, then those places should be licensed, but when it's completely ancillary, and acts as a means to promote local music and musicians, who benefits from that?"

Licenses are required for the public playing of copywritten music in any form, be it a bar, nightclub, dentist office or claustrophobic elevator. Copies of popular tunes, arrangements, or derivative works of those songs are fully covered.

Even the casual playing of CDs as background music is considered a "performance" of that work and subject to regulation. Yearly fee schedules are based on the fire code occupancy of the business and intensity of music used. Costs run from $310 at a small pub playing an occasional sea chantey, to over $500,000 for the nationwide Walmart empire, inundating shoppers with waves of classic rock.

It's a blanket license that covers 6.5 million songs in their catalog, owned by 375,000 different songwriters, composers, and music publishers.

When violations are suspected, BMI places calls or sends letters to the business notifying the owner.

"Our agent's calls are monitored and they are highly trained and strive to maintain professionalism," Bailey said. "We try to educate the owner and teach them their responsibilities under the law, then allow ample time to comply. Lawsuits are only taken in extreme cases after years of warnings and notifications."

Often, BMI sends out a field researcher to the business to determine the extent or existence of a violation. These agents are contracted by BMI and are usually musicians, disc jockeys or retired teachers with sharp ears for recalling music, and good character should they need to testify in a court case.

When recorded music is in question, agents utilize a mini-disc recorder running a digital program developed specifically by BMI called "Blue Arrow," which instantly recognizes and identifies material from a database of millions of songs. The application can be downloaded free to any iPhone.

BMI maintains detailed computer profiles of businesses, that are constantly monitored and updated.

"Hypothetically, if a café owner, playing live music once a week, assures a rep they are absolutely not playing any licensed material, then that business goes into an 'unlicenseable' category," Bailey said. "But we will revisit that profile in the future, as circumstances often change. In most cases where owners claim they are in compliance and a researcher is sent in, infringements are found. They're just trying to get around paying for a license."

Bailey notes that most songwriters make their money from the licensing royalties derived from the public performances of their music on the radio, TV, retail stores and sporting events, not record sales.

"We are a non-profit organization here to protect copywritten works," he said. "Approximately 88 cents of every dollar collected goes right out the door to our songwriters and publishers."

But local venue providers - and many musicians - don't see performing rights organizations as protectors - they see them as bullies.

"Very little of the money actually ends up in the hand of the artists. I've never seen a penny in my pocket," claims one local musician who is currently a member of BMI. "This is just bullying behavior from them. It actually stifles creativity."

"The aggravation is just not worth it to us," Wavin said. "They called back a couple weeks later and told me I was playing CDs in the restaurant. I told them I wasn't and asked them how they knew that and he just ignored my question. I understand rights need to be protected, but to what extent?"

Sisters Folk Festival director, Brad Tisdel, believes these music organizations are in need of some modernization to a more pragmatic, realistic model.

"Do it in a way that's thoughtful and productive and consistent. And don't nickel-and-dime the mom and pop places," he said. "They're trying to keep cultural expression alive in America."

Tisdel sees the system as unrealistic and outdated.

"If BMI and ASCAP truly want to protect artist rights, then have some funds go back to the artists themselves. And don't attack small venues that support local musicians. Go to the big arena events and stadium concerts that derive huge profits from using copywritten material."

So the battle rages on. In small towns and big cities across the United States, from tiny pubs to independent bookstores and coffee houses. For the meantime, The Depot Café intends to continue having music once in a while, but will restrict their performers to play original material only.

"Hey, we're just wanting to have some music while people eat," said Wavrin. "We didn't know we were doing anything wrong. What will eventually happen is that we'll just stop playing music. And that benefits no one."

Despite the legion of music licensing watchdogs armed with recording devices, singing in the shower still remains perfectly legal - no matter how many dogs howl in protest.