Bergen County Bar Must Compensate Songwriters For Hosting Cover Bands, ASCAP Says In Suit

BERGEN COUNTY, NJ — When a restaurant features cover bands that play other musicians' work, they're supposed to pay for an annual license to compensate the artists, says a music licensing organization.

But 10 bars and restaurants across the country have not been doing so, says the American Society of Composers, Authors and Publishers (ASCAP). This week, the organization took legal action.

On Wednesday, ASCAP announced that they have filed 10 separate copyright infringement actions against establishments across the country that are allowing unauthorized public performances of their members’ works — including Five Dimes Brewery in Westwood.

The brewery, which also has locations in Red Bank and Point Pleasant (neither of which is being sued), routinely features live bands as well as open mic nights.

But the establishment's owner said Friday that they have a music license through another organization, and they don't understand why they're being sued.

Background

The restaurant was founded in 2022 and replaced a landmark on the main street, L.N. Grand 5&10 Cent store, which had been there for more than 60 years.

Of the 10 venues sued by ASCAP this week, Five Dimes is the only one in New Jersey.

Jackson Wagener, the senior vice president for business and legal affairs for ASCAP, clarified in an interview why the organization was going after this particular business.

"We really want businesses to use music in their business," he said. "But we want to ensure songwriters are paid a fair fee when that happens. This allows them to pay rent, put food on the table, put their kids through school. It allows music creators to continue to earn a living from their craft."

Most restaurants that host live music, or even play music on their loudspeakers, must pay for an annual license, he said. Wagener said ASCAP, which is a non-profit, makes their licenses affordable, sometimes as low as $750 per year.

"ASCAP ensures its members can earn a living from their art by licensing the public performances of their songs," he said, "collecting those license fees, and distributing royalties to its members. About 90 percent of the license fees that ASCAP collects are paid to its songwriters, composers and music publishers as royalties."

He noted that not all songwriters are performers, so some don't earn money directly from concerts and merchandise.

Wagener said litigation is "a last resort" and comes after ASCAP has reached out to a venue multiple times.

Secret Inspections

Wagener says that ASCAP finds out about violations by seeing the venues advertising on the internet, and if they won't comply, the organization will actually send inspectors to see if songs are played without a license.

The lawsuit, filed in New Jersey district court on Tuesday, names Get Jet Music, Inc., Perren Vibes Music, Inc., Benjamin Berger Publishing, and W. Chappell Music Corp/WC Music Corp. as plaintiffs against Five Dimes Brewery.

It specifically names three songs played by a cover band at Five Dimes on June 28:

• "Are You Gonna Be My Girl," published in 2003. (Get Jet Music)
• "I Will Survive," published in 1978. (Perren Vibes)
• "Shut Up And Dance," published in 2014. (Benjamin Berger/W. Chappell)

"Music adds an enormous value to bars and nightclubs and restaurants," Wagener said. "People come back more often, stay, longer, spend more money on food and drink."

Owner Responds

Chris Alepa, who co-owns Five Dimes, said Friday that he has had a license for live music since the establishment opened in 2022.

He said that by talking to others in the business, he learned that he should pay for an annual license through BMI, another organization that represents more than a million songwriters.

He said that when ASCAP sent him a package this year, and asked him to pay an annual fee of $2,400, he reached out to find out why.

He said he never got a clear answer.

After ASCAP contacted the media this Wednesday, Alepa made more calls and got an explanation on Thursday, he said.

"They used the example that we had a Paul McCartney cover band," he said. He said that while he might have paid for songs McCartney wrote, the songs he co-wrote with John Lennon might not be covered by BMI.

Alepo said that he still hasn't seen the complaint ASCAP filed, but he's always tried to be a good neighbor and member of the community, and opens his establishment for charity events.

"I open my place to every charity group out there, every organization," he said.

He said bands have sent messages of support after hearing about the complaint. He said he hopes to resolve the matter with ASCAP.

"I think they jumped the gun," he said.

'Rainbow Connection' Songwriter Weighs In

In a press release, Paul Williams, ASCAP's chairman of the board — who wrote "You And Me Against The World," "An Old Fashioned Love Song," and "Rainbow Connection" — weighed in on the infringement suits.

“We want every business that uses music to prosper, including bars and restaurants," he said. "Most businesses know that an ASCAP blanket license allows them to offer music legally, efficiently and at a reasonable price, while compensating music creators fairly.”

"Each of the establishments sued today has chosen to infringe upon the hard work of songwriters instead of licensing the music they play, despite repeated notifications and opportunities,” said ASCAP Executive Vice President and Head of Licensing Stephanie Ruyle.

The 10 businesses cited by ASCAP this week include:

• Five Dimes Brewery (Westwood)
• Iron Well (Grand Rapids, Mich.)
• Murphy's Pub & Grill (Rapid City, SD)
• One Thirteen Brewhouse (Greensboro, NC)
• Penuche's Ale House (Nashua, NH)
• Shady Gators (Lake Ozark, Mo.)
• Temecula Stampede (Temecula, Ca.)
• The Vibe Ultra Lounge (Anaheim, Ca.)
• The Water Tank Bar & Grill (Austin, Tex.)
• White Elephant Pub (Englewood, Fla.)

Find out more here: http://www.ascap.com/whywelicensevenues