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BMI, other rights holders awarded $28,000 judgment against defunct Winona tavern
Music might make you feel free. But it is not, in fact, free. Not even when performed by your favorite local bar band.
That’s the hard lesson that Minnesota U.S. District Court Judge Eric C. Tostrud gave to a now-defunct Winona tavern on June 11. (Ruling here.)
Tavern 129 L.L.C., and its operator were fined treble damages—$28,800—for unlicensed public performances of seven songs by the likes of the Bee Gees, Rick Springfield, Daniel Powter and Fall Out Boy.
The performances, which occurred on two dates in January and February of 2019, dropped the legal weight of the music industry onto the business, as rights holders claimed copyright infringement.
The case’s nine plaintiffs included Broadcast Music, Inc. (BMI), Sony/ATV Songs L.L.C., Universal, Inc., Gibb Brothers Music and several other copyright owners.
BMI, the lead plaintiff, controls some 17 million musical works and offers blanket licenses authorizing public performances of its songs. The company has offices in New York, Nashville, Los Angeles, London and several other cities.
The Winona bar received repeated warnings about its failure to obtain a license. BMI telephoned or wrote the bar more than 30 times beginning in late 2017, to “educate [them] as to their obligations under the Copyright Act,” according to Tostrud’s 10-page order.
“Despite BMI’s efforts,” his order says, “defendants have ‘publicly performed and/or caused to be publicly performed’ musical compositions at the Tavern 129 bar without a license or permission to do so.”
In early 2019, BMI twice sent an investigator to the tavern. The investigator heard unlicensed performances of the Bee Gees’ “Stayin’ Alive,” Rick Springfield’s “Jessie’s Girl,” and Daniel Powter’s “Bad Day,” plus four other tunes.
A BMI spokeswoman said Tuesday that in one instance witnessed by the investigator, a band was playing music at the bar. The other involved karaoke performances, she said.
Tostrud awarded plaintiffs’ full requested damages of $28,800, equal to just over $4,114 for each infringement.
It could have been worse. If a copyright owner proves an infringement is willful—and here, the judge found it was—recovery of up to $150,000 per infringement is possible.
But in Tavern 129’s case, Tostrud decided treble damages was enough in granting plaintiffs’ motion for default judgment. He found the business and its operator/manager, Andre Matthew Klonecki, jointly liable for the costs.
The judge also awarded $2,380 in attorney’s fees to plaintiff and a post-judgment interest rate of 0.05% until payment is complete.
Finally, Tostrud permanently enjoined the bar, Klonecki, and any bar employee or agent from continuing to infringe on the plaintiffs’ copyrights.
Had the tavern simply obtained a standard music-performance license, its costs would have been significantly less. An annual BMI license costs about $2,400, Tostrud’s opinion notes. The bar’s licensing costs since the infringements were identified in December 2017 would have totaled about $9,600, Tostrud writes.
“Especially in view of defendants’ willful conduct, an award of $28,800—or about three times the sum of unpaid licensing fees—is appropriate,” the judge writes.
A call to Tavern 129 found the business’ phone number out of service. Its Facebook page also has been taken down. A spokesman for the Winona Chamber of Commerce said the tavern has been closed for at least several months. He did not know why it went out of business.
Plaintiff’s attorney William D. Schultz, of the Minneapolis law firm Merchant & Gould P.C., declined to comment on the case.