LIVE-MUSIC SCENE Acoustic fights back BY SARA DONNELLY

Acoustic Coffee on Danforth Street is altogether a very freedom-loving place. Exhibitionists have the freedom to take the stage and rant. Animals have the freedom to roam the earth instead of winding up in one of Acoustic’s sandwich wraps (the menu here is entirely vegetarian). Patrons have the freedom to enjoy uninhibited open-mic and music performances without shelling out a dime. But on April 2, owners Margaret Lyons and Mark Lembo received the first of several letters from a company which could place a straitjacket on all of this freedom unless the duo ponies up.

The company, Broadcast Music, Inc. (BMI), is the largest licensing representative of songwriters in the United States, and, under US copyright law, Acoustic Coffee must purchase a license from them before anyone in the café plays any of the 4.5 million songs in BMI’s catalogue. Lyons points to other small venues in Portland, including Silly’s and Three Dollar Dewey’s, which this year have modified or chucked their respective live music shows in part because of the cost of licensing from BMI and two other similar companies. She and Lembo spent three uncomfortable weeks considering a similar tack and on April 19 decided to hire an attorney to avoid buying the licenses.

Lyons plans to require future performers at Acoustic to sign a contract agreeing to play only original music not licensed by BMI or its competitors.

"If we paid the fees it would be crippling and if we were sued [for copyright infringement] we would be put out of business," she says. "So we’re going to fight them."

Lyons received licensing bills from both BMI and its rival the American Society of Composers, Authors, and Publishers (ASCAP) last week. The bills total close to $1000 a year.

Lyons’s decision, which was made hours before the Phoenix’s press time, comes on the heels of weeks of steady contact from BMI.

"Some [BMI reps] are really cool," says Lyons. "Some are like car salesmen, and some are downright nasty, like threatening and bullying, [saying] you can’t afford to do this because you will get caught and you will get sued."

According to BMI’s director of media relations, Jerry Bailey, the company has contacted Acoustic coffee via mail or phone six times this month. The company also hires undercover agents, called "researchers," from local music conservatories and graduate programs to snoop around shows listening for BMI music, although Bailey says researchers have not visited Acoustic Coffee. Bailey says BMI’s official reps (while persistent) aren’t bullies, but they are paid to point out that federal law requires venues like Acoustic pay to play any copyrighted songs in their catalogue. In case a venue owner feels like sassing them, BMI reps have been known to mention the company’s track-record of victorious lawsuits against venues who refuse to comply, an approach which has earned BMI a reputation for strong-arm tactics, according to Harvey Reid, a York musician and songwriter who has been a member of ASCAP and BMI since 1982. Reid’s 1993 self-published article on the companies’ licensing practices, "ASCAP and BMI: Protectors of Artists or Shadowy Thieves?," is popular on the Internet.

"I get letters from people all over the country, telling me their horror stories," says Reid. "What ASCAP and BMI are doing is not illegal. But the performance venues often feel like they’re being shaken down by the mafia — they aren’t very nice about explaining what’s going on, so I’m told."

Colleen Kelley says she’s experienced the ugly side of BMI firsthand. Kelley purchased Silly’s restaurant on Washington Avenue three years ago. She’s since hosted dozens of live acts at the restaurant and had a license with BMI for a while. But she cancelled the license in October 2004 and now insists that all of her performers play strictly original music. In February, she heard from BMI reps doubtful about the originality of her playlists.

"They were just ridiculous," she says. "They would call twice a week, leave messages on my cell phone, at the restaurant, with my staff. Now anybody who plays here plays original. We just promote it, we just make fun of them and say we only play original music because we refuse to comply with this ludicrous thing."

Sandy Marston, the owner of Three Dollar Dewey’s on Commercial Street, says the bar won’t host live music this summer in part because revenue from the shows did not make up for the cost of licenses from BMI and ASCAP. For Marston, it’s about the bottom line.

"It’s the law, it’s the way it is, but that’s one reason we don’t have the entertainment [anymore]," Marston says.

But Lembo and Lyons, who had never heard of BMI before this month, say Acoustic shouldn’t have to play by the same rules as clubs and bars downtown which they believe should rightly pay a licensing fee to cover shows. Unlike places like the Big Easy and the Alehouse, the café never charges a door fee and Lyons says cover songs account for "less than one percent" of the tunes shared here.

"They [BMI] don’t seem to realize that we’re just a clunky little coffee shop, we’re not a big bar selling alcohol and raking it in," says Lyons, though Acoustic Coffee does hold a beer and wine license. "There’s no way we could ever afford to pay these people. So we’re having a fundraiser [to raise attorney’s fees]. I want to call it ‘BMI Can Suck Acoustic’s Cocks-ee,’ but Mark finds that offensive. So we’re calling it the May Day fundraiser."

According to Lyons, Acoustic’s BMI licensing fee will cost $283 a year. BMI’s Bailey says this is the lowest rate possible, with the highest reaching upwards of $8000 a year for large clubs with nightly shows. Bailey recognizes Lyons and Lembo may never have expected to pay licensing fees. He says they’re not alone; BMI’s media relations reps spend most of their time informing owners of businesses like Acoustic about the reality of the copyright law.

"Under the law, they’re not supposed to wait until we call on them or they receive a letter from us, they’re supposed to get permission before they play the music," he says. "And some of them don’t know that or else they just don’t acknowledge that so they begin to infringe on copyrights before they hear from BMI."

Of the three music licensing firms in the country — BMI, ASCAP, and SESAC, Inc. — BMI is the largest, representing some 300,000 songwriters and producers like Shania Twain, Paul Simon, and Ray Charles. More than half of the music played in commercial venues in the country is in BMI’s catalogue, which means the locale — including retail stores, RV parks, bowling lanes, and yoga studios — hosting the performance or looping the tune through its speakers must hold a license with the company or risk a lawsuit. The rules are the same for ASCAP and SESAC.

BMI’s revenue from licensing fees for venues domestically and internationally as well as fees from radio, television, and Internet shows totaled $673 million in 2004. According to BMI, 85 percent of this licensing revenue is divvied up and mailed out quarterly as royalty payments to those members who are played on local radio stations (a particular sticking point to musicians who just play around town). In 2004, BMI paid its radio-rocking members a total of $573 million in royalties. According to Bailey, the song in BMI’s catalogue most often played through speakers or covered by bands is "You’ve Lost that Loving Feeling" by the Righteous Brothers.

Oh, and if you allow "You’ve Lost that Loving Feeling" to be played in your establishment even once without registering first with BMI, the company could hit you with a per-song fine between $700 and $30,000. Ain’t love a bitch?

Heather Caston is the President of the Maine Songwriters Association, which hosts a weekly show at Acoustic Coffee. Caston is not a member of BMI, ASCAP, or SESAC because, since her songs aren’t played on the radio, she wouldn’t receive royalties from the company even if she did play out at a licensed venue. She says many of the musicians who play at Acoustic are in the same boat, which makes the café’s licensing quandary especially ironic.

"If you make it big and you are a musician and a songwriter, absolutely, these [licensing companies] are beneficial," she says. "It would be easier for performers if everybody had licenses, for sure, but for a small place like Acoustic Coffee, they’re not charging a cover, they’re not paying their performers, and they’re just promoting original music. For them, it’s a completely different situation."

Acoustic Coffee will hold its fundraiser for attorney’s fees on May 1 from 6 to 8 p.m. Lyons says fundraiser playlists will be all original, all the time. For more, contact the café at (207) 774-0404.