PORT ANGELES — A music industry giant is suing The Dam Bar, a tiny live entertainment and drinking establishment west of Port Angeles, for playing music without permission.
The 2,500-square-foot venue at the corner of U.S. Highway 101 and state Highway 112 is one of 11 bars and restaurants nationwide being sued for alleged copyright infringement by the American Society of Composers, Authors and Publishers (ASCAP), the nonprofit performance rights organization announced Wednesday.
The Dam Bar is the only business in the Pacific Northwest region of Washington, Oregon, Idaho, Montana and Wyoming named in the suit filed by ASCAP, which represents 650,000 songwriters, lyricists, composers and music publishers.
ASCAP’s complaint against Dam Bar owner and Forks native Elda L. Brandt and her daughter, former co-owner Jennifer L. Landon, was filed Tuesday in federal District Court in Tacoma under the federal Copyright Act of 1976, which prevents the unauthorized copying of music.
The other lawsuits filed last week west of the Mississippi River were against The Savoy Entertainment Center, Inglewood, Calif., which hosts the likes of comedians David Chappelle and Cedric the Entertainer; the Time-Out Sports Bar & Grill in Las Vegas, Nev., which paid out $2.68 million to gamblers in 2017, according to its website, and the 5-D Steakhouse & Lounge in Yorktown, Texas, population 2,200.
Brandt, 62, who purchased what was the Junction Roadhouse in 2014, said last week that she will not talk to ASCAP representatives about acquiring a license agreement, which would cost her $912 a year.
“I’ve been fighting them ever since I bought the bar,” she said.
Brandt claimed ASCAP representatives have intimidated her.
She questioned if artists benefit from the license fees and challenged ASCAP on claims she was playing their songs.
“I’ll probably continue doing what I’ve been doing, which is ignore them,” Brandt said. “They’re not going to come after these little bars.
“What’s their reasoning? What do they get?”
The international law firm Perkins Coie LLP of Seattle filed the lawsuit on behalf of ASCAP.
Brandt has 21 days to respond from the time a summons is served. A summons had not been served as of Thursday, she said.
The lawsuit seeks damages, as outlined in the Copyright Act for infringement actions, of between $750 and $30,000 for the unlicensed, unpermitted performance of each of four songs, or $3,000 to $120,000 in total damages, along with court costs and attorney’s fees.
ASCAP alleges the songs were played on April 19, 2017, during what Wagener said were karaoke performances. A person from a private investigative firm who was at the bar documented The Dam Bar patrons singing the songs, Wagener said.
“It’s curious they sent someone on Karaoke Night, because I usually know everyone,” Brandt said.
Jackson Wagener, ASCAP’s vice president of business and legal affairs, said Thursday he did not know why The Dam Bar was chosen for an inquiry by ASCAP but that the organization becomes aware of venues that play licensed music through social media and advertisements.
“In all likelihood, we saw an advertisement of the music being played,” he said.
Brandt suggested she was randomly targeted.
“They just pick and choose for whatever reason, and it seems like they go for the smaller guys.”
Wagener said songs must be licensed if performed by any means, including by a DJ.
“Regardless of the source of the music, if a song in performed in public by a person in a commercial establishment, [the business] needs to have permission from the copyright owners,” Wagener said.
“Other suits have involved karaoke, cover bands and DJs.”
The Dam Bar’s karaoke performers sang the country hits “Don’t Close Your Eyes” and “The Dance,” recorded by Garth Brooks; “Monday Morning Church,” recorded by country music star Alan Jackson, and “Summer Nights,” from “Grease,” among the most popular movie musicals of all time.
“The many unauthorized performances at The Dam Bar include the performances of the four copyrighted musical compositions upon which this action is based,” the lawsuit says.
“Since October 2016, ASCAP representatives have made more than 15 attempts to contact defendants, or their representatives, agents, or employees, to offer an ASCAP license for The Dam Bar,” the lawsuit says.
“ASCAP has contacted defendants by phone, by mail, and in person.
“Defendants have refused all of ASCAP’s license offers for The Dam Bar,” the lawsuit says.
Brandt infringed the copyright in each of the four compositions, it says, adding, “defendants threaten to continue such infringing performances.”
Wagener said there are hundreds if not thousands of businesses in Washington state that comply with their obligations under the Copyright Act.
“Music is property just like anything else,” he said. “Using music in a business is a cost of doing business. It’s like paying a liquor distributor for the beer there.
“That’s the additional piece.”
A license is not required for all uses of copyrighted material.
The fair use doctrine allows the unlicensed use of copyright-protected works in certain circumstances that consider if the use is commercial or nonprofit, whether the work is factual or creative in nature, how much of the copyrighted work is used, and the impact on the market for or value of the copyrighted work, according to www.copyright.gov, operated by the U.S. Copyright Office. The site is offline in a planned outage until Tuesday, the office said.
Wagener said 88 percent of every dollar collected by ASCAP goes to paying royalties to members.
Brandt said she asked for a list of songs managed by ASCAP and was told it was too great a number to provide her with the a copy of the information.
ASCAP has “millions of works in our repertory,” he said, making it impossible to provide a list, but that ASCAP’s repertory is available at its website, www.ascap.com.
The four songs are on the organization’s website in ASCAP’s repertory of musical works.
Based on The Dam Bar’s 96-person occupancy limit and the karaoke and live music that’s offered, the yearly license would be $912, ASCAP spokeswoman Cathy Nevins said.
The range of the judgment award — in this case, $3,000-$120,000 — that could be awarded against businesses that infringe music copyrights, when compared to the “affordable” cost of a license, shows that it makes sense to work with ASCAP on a licensing agreement, Wagener said.
If a dispute with a business over acquiring a license reaches a point where the issue must be litigated, a settlement amount would exceed the simple cost of a license, he said.
“Our goal is to see if this can come to a fair and amicable settlement,” he said.
“We’re not looking to put anyone out of business when we file a lawsuit.”
Brandt said she’s tired of what she said is ASCAP’s intimidation.
“They called me a thief, they called me horrible things over the phone, and it’s gotten to the point where I just hang up on them,” she said.
Wagener said he hopes the lawsuit acts as a deterrent for similar copyright infringements.
In its announcement Wednesday of the legal action, ASCAP said the lawsuit against Brandt was filed on behalf of Universal Polygram International Publishing Inc., Cowboy Chords Music, Morganactive Songs Inc. and Edwin H. Morris & Co. Inc.
Lawsuits also were filed against food, liquor and music establishments in New York City; New Orleans, La.; Arlington, Va.; Greensboro, N.C.; Charlotte, N.C.; North Charleston, S.C., and Destin, Fla.
________
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at pgottlieb@peninsuladailynews.com.
The Dam Bar, located near the junction of U.S. Highway 101 and state Highway 112 west of Port Angeles, is being sued by ASCAP for playing music without paying liscensing fees to the Nashville-based music royalty organization. (Keith Thorpe/Peninsula Daily News)
