DINGO THE CLOWN and Olive Rootbeer showed up at Café au Play on SE Division last Thursday, August 9, to lead the children's story time they host every week.
But then the staff of the volunteer-run coffee shop informed them that the pair's days of singing classics like "Mary Had a Little Lamb" were over. After receiving numerous emails, phone calls, and letters over the past month from music-licensing organization Broadcast Music, Inc. (BMI), Café au Play was worried it would have to fork over hundreds of dollars in royalties if anyone performed any songs they hadn't written themselves.
"They were sending me letters, emailing me, saying I'd have to buy a license to have performers," says Kristin Heying of the nonprofit Café au Play. "I was like, this is kids' music! We have all-local kids musicians." Rather than risk the wrath of BMI, the café decided to ask performers to play only original music—no nursery rhymes, even.
Café au Play is just one example of small businesses being solicited heavily to spend hundreds of dollars on a music license or face potentially hefty fines. After being asked about its solicitation of Café au Play, BMI said that the café had been contacted over and over by mistake.
BMI is the country's largest music-licensing organization. The nonprofit corporation patrols commercial use of music on behalf of songwriters, collecting royalties for artists who sign up with BMI and then sharing the proceeds. Much of BMI's work involves encouraging businesses—like coffee shops and bars—to buy annual music-use licenses that cost a minimum of $335 a year.
Many of the rules around music licensing are surprising. For example, if a business is playing the radio on six or more loudspeakers, or plays Top 40 hits as its hold music, that requires a public performance license. If BMI agents can determine that a business is playing music they represent without a license, the group can retroactively demand royalties.
The Oregon Restaurant and Lodging Association frequently gets calls from restaurant owners about music licensing issues, says the group's Vice President of Marketing John Hamilton.
"I don't think know if I would call these companies predatory, but they can certainly be tenacious and intimidating," says Hamilton, who recommends businesses sort out their music situations with the help of a copyright lawyer. "If you're on their radar, it takes a little bit to get off, because they'll assume you're playing their music unless you can prove you're not."
In the case of Café au Play, the coffee shop may have come under BMI's scrutiny because it lists live music performances like "Story Time with Olive Rootbeer and Dingo" on its website.
Heying says she felt the café was being intimidated into paying for a service it doesn't need. Neighbors built the nonprofit coffee shop and community center over several years on what used to be a drug-infected site, training high schoolers to work as baristas. Spending $300 on a license would eat into the group's budget.
"Definitely they're trying to intimidate you, it's like the music mafia," says Heying.
"If they're advertising live music on their website, it could be inferred that they're playing more than occasional nursery rhymes," says BMI spokesman Ari Surdoval, who confirmed that the café had received letters and phone calls.
However, after looking into the file, Surdoval quickly called the Mercury back to say that soliciting Café au Play had been a mistake.
"They certainly appear to be more of a nonprofit. Right now, they're going to be pulled out of the system," said Surdoval.
Heying was astounded when she heard the news that Café au Play would no longer be BMI's target for royalties.
"If that really happens, I would be floored," she said.