This week in Melodies, I will be focusing on laws that
affect the way I will conduct my light club and restaurant, Melodies From
Heaven. After doing considerable
research, I came across three articles that touched the heart and soul of doing
business in the hospitality/entertainment industry. In the article, Hospitality Industry Legal
Risks: Restaurants and Bars Are Being Sued For “Illegally Playing Licensed
Music”, by Major Protective-Rights Organizations, Ohio businesses were being
sued for violations to the copyrights laws for playing copyrighted music
without a license. In this article,
Broadcast Music Inc., (BMI) has sued bars and restaurants for a total of 898.8
million dollars in revenue (DaytonaDailyNews, 2012). The question is what happened? Why have so many businesses been caught with
their pants down? According to Tracy
Reilly, a law Professor at the University of Dayton who teaches on intellectual
property, violations of this type are commonly policed (DaytonDailyNews, 2012).
So why didn’t the owner of Pub at the
Greene in Beavercreek, Ohio have to pay 30,000 to BMI after four violations,
Jen’s Bar and Grill have to pay, 68,000 for 17 violations, and countless others
if the copyright laws are regularly policed?
According to BMI, they try to work with businesses and give them time to
pay fees before they file a lawsuit. But
still, businesses are failing to comply.
According to Richard Boucher, an attorney for one of the bars that got
sued by BMI, the formula for licensing is that a business has to pay about $5
for each occupant (DaytonDailyNews, 2012).
If a business has a maximum occupancy of 200, then they would have to
pay 1,000 a year. So why not pay for the
license instead of pay a fine for each infraction, plus attorney fees and court
costs? Reilly claims that business
owners have a sense of entitlement by which they believe they shouldn’t have to
pay. The problem is that they don’t have
the right. Copyright law states it is the exclusive right of the copyright
holder. Non-exempt entities have a legal obligation to obtain and/or pay for
permission to play in public “live” performances of copyrighted music –
including radio, TV, bands, and karaoke (DaytonDailyNews, 2012). Despite the law, many restaurants and bars
are still being fined. Sharon Morgan,
President of the Miami Valley Restaurant Association says she understands why
they don’t pay. She said they don’t know
who to pay and who not to. She said it
is very, very confusing (Dayton DailyNews, 2012).
According to the article, a representative goes to the
establishment and records songs being played. The information is relayed back
to the attorney who follows up to try and collect blanket licensing fees. If that doesn’t work, then BMI files the
lawsuit. In my opinion, I can’t see how
this process would be confusing at all. As a business owner, one should seek
out information about licenses before forming the business and pay them ahead
of time. One should get licensed, period,
especially if you have been cited by one of three organizations that license
music and collect royalties, BMI, the American Society of Composers, Authors
and Publishers (ASCAP), and the Society of European Stage Authors and Composers
(SESAC). Ignorance of the law is no
excuse.
The second article deals with laws related to noise level in
music venues. The article, Occupational
noise exposure and regulatory adherence in music venues in the United Kingdom
by Christopher Barlow and Francisco Castilla-Sanchez, deals with noise at work
legislation in the United Kingdom. In a
music industry, noise is a desired part of business. It was not regulated in the UK until April of
2008(Barlow& Castilla-Sanchez, 2012).
It became regulated under the Noise at Work Regulation 2005. This meant that employers of bars,
orchestras, nightclubs, etc., had to abide by the same rules (based on ISO 9612:2009)
for controlling noise as other industries. This meant that employers would have
to regulate the exposure to noise by their workers as well. In the entertainment industry this posed a
dilemma. Usually the more louder the
music, the more fun people have at concerts, bars and other live venues. The researchers wanted to find out to what
extent were the employers complying with the regulations since there was little
incentive to comply. They studied four
public music venues where live or recorded music was played.
“ In
Europe, noise exposure for any given time uses the long-term average measure LA EQ (sometimes expressed as dBA
Leq) that is used to calculate a
“personal daily noise exposure, or L ex 8h which normalizes the exposure to an 8 hour working day. According to the
regulations, if an employee works in an
environment where he or she is expose to a L (EX8H) that exceeds the lower exposure level of 80 dBA the
employer is obligated to provide regulatory
demands. These include optional noise protection, a range of monitoring devices including audiometry,
and training in noise risk for employees.
If the average
sound level exceeds the “upper exposure action level”
of 85 dBA, it is mandatory for the employer to provide protection and to
ensure that protection is worn, (ibid) as well as to use other controls to minimize exposure –for instance
using engineering solutions
and administrative options such
as variation in working patterns. The mandatory upper limit for noise exposure of
an employee (the exposure limit
value or ELV) is 87 dBA LEX 8H. This must take into account the effects of any controls such as use
of hearing protection. Monitoring
must be undertaken if the workplace is likely to exceed the lower action level (Barlow &
Castilla-Sanchez, 2012).
The results of the study found that 70 % of the venues had
exceeded the daily noise levels set by law.
Use of hearing protections as warranted by the regulations was
rare. Understanding of the hazards of
noise was rare. It is obvious that at
these levels the hearing of employees will be damaged and that regulations were
not being followed. I am not surprised
at the results. This is a case that demonstrates
that when public attitudes are at odds with regulation, it will be an uphill
battle in changing behavior in an industry that relies on loud noise as the
music industry does. No matter if a law
is passed to protect health, people will find a way to skirt the law if they
feel it interferes with their unalienable rights to life, liberty and the
pursuit of happiness.
The last article, involves a case of trademark
infringement. The article, Louis Vuitton
Wins Counterfeit Bag Lawsuit by Stephen Rabiner, Esq. In this case, two Chinese
business owners, Zheng and Bei, were accused of manufacturing and importing
fake Louis Vuitton handbags. The court
ruled that they and two other American companies had in fact violated trademark
law. As a result the court will probably
outlaw goods from being imported to America.
Valerie Sonnier, Louis Vuitton’s global intellectual property director alluded
that the law will cover all infringement products- not those made by Zheng and Bei
(Rabiner, 2012).
If so, this could be the beginning of the end for those
companies who profit from selling knock off luxury goods and for those who
sells items similar to name brand items.
This order is likely to cause customs problems for those who deal in
these products and lead to other lawsuits for other brand name items.
In my opinion, I think this would be good for legitimate
businesses and new start- ups that want to launch their own brand name luxury
fashion line. It is not fair to take
someone else’s creative ingenuity and use it like it was your own for material
gain.
References
Barlow, C, and Castillo-Sanchez, F., (2012). Occupational
noise exposure and regulatory adherence in music venues in the United
Kingdom. School of Technology Maritime
and Technology Faculty Southhampton Solent University, East park Terrance,
Southhampton-United Kingdom, SO14ORD, UK
Govaki, Mark (2012, Oct 31). Area bars sued for lack of
music licenses. Retrieved from http://www.daytonadailynews.com/news/news/crime-law/area-bars-sued-for-lack-of
music-licenses/nSsqX/
Rabiner, S., (2012, April 19). Louis Vuitton Wins
Counterfeit Bag Lawsuit. Retrieved from http://www.blog.findlaw.com
2012, Nov 1.
Hospitality Industry Legal Risks. Retrieved from http://www.hospitalityrisksolutions.com
