Local bar sued for using music

By Umaymah Rashid
The Collegian

Popular Fresno State hangout Porky’s Rib House, is the target of a lawsuit filed last week by performing rights organization, Broadcast Music Inc.

The lawsuit regards Porky’s playing BMI music in the establishment without paying royalities to the company.

The suit was filed in Fresno Federal Court and claims that Porky’s and Christopher Funch, who is named in the lawsuit as the defendant, violated copyrights by staging live music, playing compact discs, and having karaoke and a DJ without being licensed.

The lawsuit aims to stop Porky’s from playing music written by BMI-represented songwriters and to pay damages for each claim of copyright infringement.

Some students are surprised by the lawsuit and were not aware restaurants and clubs needed permission to use music.

“I thought once they bought the CD, they could use it how they wanted to,” Joshua Ramsey, criminology major, said.

Carmen Hernandez, a Mass Communication major, thinks Porky’s might be an unfair target.

“I have never heard about any food establishment being sued for music infringement,” Hernandez said.

She also said although Porky’s might be a target, the lawsuit is fair since BMI gave Porky’s numerous opportunities to settle.

Dollar damages are not specified in the suit, but BMI’s Web site says damages can include “copyright owners actual damage, as well as statutory damages of at least $750 for each song.”

“Eating and drinking establishments that use BMI represented music must pay a yearly licensing fee and Porky’s simply chose not to pay,” Jerry Bailey, BMI Director of Media Relations said. According to Bailey, since July 2004 BMI has made several attempts to have Porky’s sign a licensing agreement but were unsuccessful.

BMI claims 36 phone calls were made, and 25 letters sent to Porky’s in regard to the lawsuit. In September, Bailey said, BMI sent a “music researcher” to Porky’s to record the music the restaurant played.

Music researchers note the music a restaurant plays, in order to convince a judge that BMI was really in an establishment, if necessary.

Christopher Funch is the defendant in the lawsuit. He says he no longer owns Porky’s, and he did not own the property when the BMI investigation began.

“The law suit is meritless,” Funch said.

Porky’s, Funch said, did not pay for licensing because he did not play BMI’s music.

According to Funch, the lawsuit had been dropped, and he will file slander charges if BMI continued to use his name in the lawsuit. Funch said BMI is trying to use Porky’s as a way to scareother establishments.
BMI views the lawsuit differently.

“The suit has definitely not been dropped,” Bailey said.

BMI is investigating the claims of ownership, Bailey said. The lawsuit is still going forward as planned.

Lawsuits such as the one involving Porky’s are common, Bailey said. The majority of these cases are usually settled before they go to trial and this one will probably be the same, he said.

BMI represents more than 300,000 composers, songwriters, and music publishers as well as 6.5 million musical works and was created in 1940 in response to those who felt ASCAP, another licensing agency, was engaging in price-fixing, monopolistic pricing, and was far removed from the needs of alternative music like country, rock, and R&B.

Copyright owners give BMI permission to license their music and BMI collects fees on behalf of the musicians from businesses that use the musician’s work. The suit names 18 compositions that BMI claims Porky’s played illegally including: “Honky Tonk Women,” written by Mick Jagger and Keith Richards; “Born to Boogie,” written by Hank Williams Jr.; “Brown Eyed Girl,” written by Van Morrison.; and “Down on the Corner,” written by John Fogerty.

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