It was a classic piece of music industry journalism: Rapacious Big Music beats up on hapless Little Guy, with The Artist, who just wants to make ars gratia artis, caught in the middle.
This time, Big Music was ASCAP, the American Society of Composers, Authors, and Publishers, which collects licensing royalties for songwriters, composers, and music publishers. The Little Guy was a humble Irish bar called Connolly's Pub & Restaurant. And The Artist was none other than New Jersey's own "rock & roll working-class hero," Bruce Springsteen.
As first reported by the New York Daily News, The Boss sued Connolly's last week for copyright infringement after the bar allegedly failed to obtain a license from ASCAP to publicly perform his songs, including "Growin' Up" and "Because the Night." But shortly after the story about the lawsuit broke, Springsteen's flacks claimed it was all a big misunderstanding, blamed ASCAP, and said he was ditching the suit.
"ASCAP was solely responsible for naming Bruce Springsteen as a plaintiff in the lawsuit," said a Feb. 4 statement from his PR reps at Shore Fire Media. "Bruce Springsteen had no knowledge of this lawsuit, was not asked if he would participate as a named plaintiff, and would not have agreed to do so if he had been asked. Upon learning of this lawsuit this morning, Bruce Springsteen's representatives demanded the immediate removal of his name from the lawsuit."
Sorry, Boss, but if you say you really believe all that, then it won't be you that's on fire—it will be your pants. And since small-time songwriters rely on big-timers like you to enforce these copyright protections, you shouldn't try to back out of this lawsuit anyway. (As of this writing, Springsteen still hadn't withdrawn.)
Update, Feb. 10, 2010: Bruce has indeed bailed from the lawsuit. On Feb. 5, just two days after the suit was originally filed, Springsteen's lawyers filed a first amended complaint, which omits all reference to The Boss and his songs. Left alone to fight against Connolly's is (the late) Clinton C. Ballard Jr., whose song "You're No Good" was allegedly played at Connolly's without permission.
Contrary to Springsteen's protestations, ASCAP is not freelancing here. In fact, Springsteen—like all members of the 96-year-old organization—has given ASCAP explicit permission to file lawsuits in his name against noncompliant venues. Paragraph 4 of the ASCAP Membership Agreement states that members:
irrevocably ... authorize, empower and vest in the Society the right to ... litigate … and in its sole judgment to join the [member] and/or others in whose names the copyright may stand, as parties plaintiff or defendants in suits or proceedings; [and] to bring suit in the name of the [member] ….
ASCAP often gives a heads-up to members before it sues on their behalf, but that's not required. Despite my repeated inquiries to Springsteen's press people, attorney, and manager, as well as ASCAP, no one would tell me whether anyone on his team was alerted in this specific case. (The Code of Silence reigns.)
In any case, Springsteen's claim of fawnlike innocence, that he's the kind of guy who would never file a suit against a poor, defenseless little bar, crumbles in the face of the dozens of nearly identical copyright suits he has filed over the past decades against bars and restaurants that wouldn't pay their ASCAP fees. Here are just a few of the fine establishments the Boss has sued: Bull & Bear Pub, in Syracuse, N.Y.; Aftershock Sports Bar & Grill, in Wentzville, Mo.; the Deerhead Tavern, of Evansville, Ind.; Corky's Pub, of Beach Park, Ill.; Pretenders, in Benton, Ill.; J.R.'s Pub & Grille, in Dunellon, Fla.; and Monaco's Ristorante, of Winsted, Conn. Also, Meritage, in Charleston, S.C.; Southern Belle's, in Charlotte, N.C.; and the aptly named Rolling Thunder Road House Cafe in Folly Beach, S.C. And he even sicced his lawyers on the Holiday Inn way down in the U.S. Virgin Islands, though it was owned by a limited partnership in his beloved New Jersey. And as anyone with a few minutes and a few bucks to spend on the federal court database PACER can quickly confirm, these are but a small sample of Springsteen's Shermanesque march of litigation across the American Land.
In fairness, there's no reason to believe Springsteen is any more litigious than the average songwriter or music publisher. His name likely appears in the caption of so many complaints simply because his songs are played so often in bars and restaurants. ASCAP sends increasingly stern letters to unlicensed venues; if those letters are ignored, it sends investigators, who note the songs they hear. Those songs then appear as "Schedule A" on the numerous complaints it files each year.
Restaurants and bars don't like ASCAP's practices, and they occasionally kvetch to the local press. But the backlash rarely hits well-known artists, because the named plaintiffs are usually faceless corporate entities like "Sony/ATV Tunes LLC" or "Jobete Music Co., Inc.," recognized by few except the songwriters who cash their checks. Springsteen is only in the news because he had the balls—or the lack of foresight—to publish his songs as "Bruce Springsteen."
The right of copyright owners to sue over unlicensed performances of their songs at bars and restaurants is hardly in legal doubt. None other than Supreme Court Justice Oliver Wendell Holmes heartily endorsed the practice in a 1917 case called Herbert v. Shanley Co. He noted that music provides "to people having limited powers of conversation, or disliking the rival noise ... a luxurious pleasure not to be had from eating a silent meal." In other words, any songwriter or composer whose sounds fill the awkward pauses, or drown out the babbling of the drunken boor at the adjacent table, deserves to be paid for the favor.
By withdrawing from the Connolly suit, Springsteen may think he avoided the PR hit that comes from beating up on a little guy (though Connolly's, a mini-chain with four locations in Midtown Manhattan and an elaborate live-music setup, isn't exactly a hole-in-the-wall). But the reality is that his actions harm a different brand of little guy: the no-name songwriters and composers who—unlike Springsteen—don't make any money by recording and performing their tunes, and depend on their ASCAP (or BMI or SESAC) checks to pay the rent. If big-name songwriters like Springsteen aren't willing to step up and fight for their rights when they're infringed upon, the system that enables them to make a living will eventually collapse. If no one is willing to sue the noncompliant bars and restaurants, why would they pay their license fees? As music licensing expert and 37-year former ASCAP executive Todd Brabec told me, lawsuits like the one against Connolly's serve as a valuable "reminder to all users [of music], large and small, that yes, these are copyrighted works out there, and you have to have permission to use them."
Springsteen receives regular and very large payments from ASCAP, some portion of which come from fees paid by bars and restaurants and other portions of which can be attributed to lawsuit judgments and settlements. Springsteen and other artists also benefit from the deterrent value of suits exactly like the one against Connolly's. Isn't it a bit churlish of The Boss to go missing as soon as the press notices?